Taxation in the economic modifications of the mortgage loans New sentence of the Supreme Court

After the tide caused a few months ago by established jurisprudence trying to elucidate the subject in the tax burden, lender or borrower, in the constitution of a mortgage loan (several judgments saw light in the last fortnight of last October 2018), arrives a new ruling (March 13, 2019) from the Contentious-Administrative Chamber of the Supreme Court that tries to solve another issue raised in the so-called mortgage novations.

Rafael Guerrero

Date 08/06/2019

We are referring to the question extended among the innumerable mortgages in our country: what economic modifications in the mortgage loans must be taxed again by AJD?

Currently, and in accordance with Law 2/1994, of March 30, when the changes in the conditions of the loan affect the interest rate and / or term of the loan, the mortgaged borrower is exempt from the payment of the Transfer Tax and Documented Legal Acts (ITPAJD), in the AJD modality.

What is really important and novel in this judgement is to establish that the taxable base of the tax, for those modifications that comply with the three legally established requirements and that are therefore subject to the payment of AJD (1. That can be raised to public deed or notarial deed, 2. that the content of the modification is valuable and 3. that it can be registered in the Property Registry), NOT ALL the mortgage liability being alive, but "the economic effect implied by said modification, which is what denotes the economic capacity subject to taxation ". As you can see then, this sentence goes beyond what was established by the Directorate General of Taxes, which had already established as a taxable basis the liable mortgage liability, and not the amount of the initial principal in its entirety.

Now, the following question can be asked in relation to the new criterion that fixes the tax base to calculate the tax payable: how is the economic effect calculated after granting a grace period or if the amortisation system is changed? It is clear that we must be aware of the new jurisprudence that is appearing to see if limits can be established to the valuation of the "economic effect" and thus close a new front of discussion between taxpayer and Tax Agency that will be opened after this ruling.

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