THE CONTROVERTIAL INDECISION OF THE SUPERIOR COURT IN SPAIN

THE CONTROVERTIAL INDECISION OF THE SUPERIOR COURT IN SPAIN

The third room of the Supreme Court in Spain decided on October 16th that the banks have the obligation to pay the Tax of Actos Jurídicos Documentados in the signature of a mortgage and not the client.

So, what can be claimed?

At the time of setting up a mortgage, the following costs must be paid:

Notary fees

Official Valuation

Administration

Registry

Tax of Actos Jurídicos Documentados

By virtue of the aforementioned law, the Supreme Court in Spain understands that it is the bank entity or the moneylender who is interested in registering the transaction and raising it to a public deed so that it must be them, and not the client, who have to pay it.

Who can claim this tax?

Anyone who has subscribed a mortgage with a bank, that has expired or remains in force.

To whom should the claim be directed?

In case you have formalized the mortgage loan within the last four years (in this case the fiscal term hasn’t prescribed), the claim has to be presented to the Spanish tax authority for the refund of the tax plus the corresponding legal interests.

If you are in the situation where your mortgage loan was formalized more than four years ago, we must initiate a judicial process against the bank to claim for the tax refund plus the corresponding legal interest.

This change of position by the Supreme Court represents an important turning point in mortgage matters and, with this, an opportunity to recover the paid tax that has been paid improperly by the client. In the Valencian Community, the tax corresponds to an amount equivalent to 1.5% of the amount of the Mortgage.

This decision has had a great economic and social impact in Spain. Thus, the day after taking the decision, the Third Chamber of the Supreme Court had to decide to annul the aforementioned sentence in order to decide whether it should be confirmed or not.

Given the uncertainty of this situation, it is advisable to be cautious and be sure, before starting any action, what amount can be claimed, which is the correct procedure and who is responsible for the refund.

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