The Judgment of February 28, 2018 of the Supreme Court (TS) resolves the discussion on the taxpayer of the Tax on Documented Legal Acts (Stamp Duty) on the mortgage in the sense that he is the buyer, and not the bank in favor of whom the mortgage is constituted.
The note published on the website of CGPJ states that:
In the specific cases subject to prosecution, the Supreme Court was already discussing only what was related to the payment of property transfer tax and documented legal acts. The court has estimated in part the appeals filed by the affected consumers and has established that on this tax several situations must be distinguished:
a) For the constitution of the loan, the payment is the responsibility of the borrower. In this regard, it refers to the constant jurisprudence of the Third Chamber, the Contentious-Administrative, of the Supreme Court, which has established that the taxpayer is the borrower.
b) By the stamp of the notarial documents, the corresponding tax to the matrix will be paid in equal parts between the lender and the borrower, and the corresponding one to the copies, by the one who requests them “.
For this reason, it must be inferred that the notarial expenses corresponding to the public deed of mortgage and the registration of the same in the Property Registry, as well as those for processing by administration of this registration, if any, correspond to the bank.
Anyway, this ruling is appealable to the CJEU, among other reasons for not respecting the principle of normative hierarchy in the conflict between the regulatory standard (Article 68 RITPAJD) and the legal standard (29 TRITPAJD).