A returns with the AJD: who will pay the mortgage expenses and who will claim Treasury
There are already three Supreme Court rulings that have declared that the AJD of the mortgages should be paid by the banks and not the mortgaged ones. If the Plenary of the Litigation Room held on November 5 confirms the criteria of these judgments, taxpayers will have no problem recovering the overpaid over the last four years. But the question is whether the Treasury can claim this tax from the banks, something that is not at all clear.
The Tax Agency expects a flood of requests for rectification and refund of undue income, in relation to the AJD paid in the last four. If the Plenary confirms the criterion, it will assume these refunds, but then it has two options: one is to demand the tax from the bank and another is to request compensation from the State, "author of the tax regulations that have generated so many problems", says José María Salcedo, partner at the Legal Attic office.
And the banks will be required by taxpayers to pay the AJD tax and civil, claiming mortgage expenses. This last route is the best one in the case of prescribed exercises, since the possibility of claiming does not prescribe. "With regard to the returns that are requested by civil means, it is expected that the Supreme Court that is in charge of these matters, will pronounce shortly and clarify the future and expectations of these claims," adds Salcedo.
What happens if the Treasury requires the bank to pay the AJD
The bank could argue the principle of legitimate trust, that is, that the Treasury can not demand the payment of a tax when expressly and precisely, and through its actions, has made clear to the taxpayer that was not subject to it. And is that for years the jurisprudence of the Chamber of Contentious has been constant to consider that the taxpayer of the AJD was the taxpayer. In addition, this was established in Article 68.2 of the Tax Regulation, before it was annulled by the Supreme Court. The Courts, in addition, confirmed for many years both the constitutionality of the article, and that it did not overstep the tax law.
In addition, the Autonomous Communities have never demanded the payment of this tax to the banks, and they have peacefully consented that it be declared and paid by the taxpayers, as established in Article 68.2 of the Tax Regulation.
"All these circumstances could be alleged by the banking entities, in the event that the regional treasuries now try to demand the AJD of the mortgage loans corresponding to the last years not prescribed," says Salcedo.
The bank has not been a party to the judgments of the Supreme Court
The banks have not been able to defend themselves in the Courts because in the three sentences where the plaintiff has been the same, the municipal housing company of Rivas Vaciamadrid, have not been called by the Tax Agency (the defendant). In this way, the bank can not be required to pay the tax that the Treasury must reimburse to the taxpayers.
"The Contentious Jurisdiction Law considers a defendant not only to the Administration that issued the act, but also to the persons or entities whose legitimate rights or interests could be affected if the appeal were upheld," the lawyer states.
This omission could violate the right of defense of the banking entities and make it more difficult, if possible, for the Autonomous Haciendas to demand the AJD. Therefore, Salcedo sees it complicated that the Treasury can demand the entities retroactively from the AJD.
Meanwhile, we will have to wait for the criterion reached in the famous Plenary which is celebrated on November 5th.
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