THE TAX OF LEGAL ACTS DOCUMENTED IN NOVATIONS: TAX BASE AND MORTGAGE CREDITS

THE TAX OF LEGAL ACTS DOCUMENTED IN NOVATIONS: TAX BASE AND MORTGAGE CREDITS.

 

The Property Transfer Tax, Corporate Operations and Documented Legal Acts, still known by older people as real rights tax, is the one that affects a large part of notarial acts. Its regulation is, to a certain extent, chaotic, since the general norm, which is the Consolidated Text of September 24, 1993, has undergone numerous reforms and this regulation has also been affected by the fact that it is a tribute ceded to the Autonomous Communities, which, as As a consequence of Law 3/1996 of December 27, they have a certain regulatory capacity that allows them, among other matters, to set the tax rate on the transfer of movable and immovable property or the tax rate on documented legal acts.

 

The modality of the tax that falls on documented legal acts is levied on the first copies of deeds and notarial acts, when their object is quantity or a valuable thing, they contain acts or contracts that can be registered in the Property, Commercial, Industrial Property and Personal property not subject to Inheritance and Gift Tax, at the type of tax that, in accordance with the provisions of Law 21/2001, of December 27, which regulates the fiscal and administrative measures of the new financing system for Common regime Autonomous Communities and Cities with Autonomous Statute, has been approved by the Autonomous Community.

 

In Catalonia, the tax on documented legal acts has a tax rate that, as a general rule, is set at 1.5% of the tax base, which will be different depending on the taxable transaction. It is not our desire to make an exposition of the documented legal acts tax, but rather a small observation on two very specific and very frequent aspects in normal practice, such as mortgage loan novations, that is, those operations by virtue of which the bank , without giving us more money, modifies the interest rate and/or the repayment term of the loan in order to make the monthly loan installments cheaper. According to Article 9 of Law 2/1994, will be exempt in the gradual modality of "Documented Legal Acts" the public deeds of modification novation of mortgage loans agreed upon by mutual agreement between creditor and debtor, provided that the creditor is one of the entities to which Article 1 of this Law refers to and the modification refers to the conditions of the interest rate, initially agreed or in force, to the alteration of the term of the loan or to both.

 

These operations, however, in Catalonia, have a differentiated treatment as a consequence of Law 5/2012 of March 20, since it limits the bonus to the limit of 500,000 euros of tax base. Raising the doubt, consisting of the fact that if the tax base is greater than 500,000 euros, the tax is paid from the first euro, or only from the excess of 500,000 euros. Well, fortunately, the Directorate General of Taxes of Catalonia has interpreted the rule in the most favorable sense for taxpayers, so that when we are faced with loan novation operations with a taxable base of more than 500,000, only the type of 1.5% the excess of 500,000 euros.

 

The second issue that we want to address is that, in accordance with the text of Law 2/1994, the exemption only applies to loan novation operations, but not to the very common type of financing in Catalonia, as it has been marketed by La Caixa, which is the open credit modality. Well, despite the restrictive criteria of the administration to assimilate these operations, it should be noted that judgment 496/2012 issued by the Contentious Chamber of the Superior Court of Justice of Castilla León, has considered, through a careful interpretation tax legislation  that the exemption provided for in art. 9 first paragraph of Law 2/1994 on Subrogation and Modification of Mortgage Loans includes mortgage loans.

 

SOnly the existence of a Supreme Court ruling is missing in Cassation appeal for the unification of doctrine, which allows us to say that the aforementioned interpretation of the exemptions is applicable throughout the national territory. However, with this ruling, there is already sufficient grounds to claim the issues in administrative proceedings and it would be logical for the different courts before which the same issue could be heard, in administrative proceedings, to be added.

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