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The judgment of the mortgages reflects the hard confrontation between the judges

The sentence and the six individual votes reported Tuesday by the Room of the Contentious-Administrative of the Supreme Court embody the intersection of legal a

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The judgment of the mortgages reflects the hard confrontation between the judges

The sentence and the six individual votes reported Tuesday by the Room of the Contentious-Administrative of the Supreme Court embody the intersection of legal arguments, but also of reproach, which are exchanged between the 28 judges sitting in the that room the last 5 and 6 November. After 15 hours of debate, the Supreme court decided, by 15 votes to 13, to rectify the judgment that the second section, the expert in taxes, was established on October 16, and charging over the bank, the tax on documented legal acts. The criterion of full was without effect on that same week when the Council of Ministers approved a decree law that established that, from now on, it is the bank to which it corresponds to him to pay tribute. This decision, however, does not support retroactive effect, so that closes the door to the claim of the customers who paid this tax to the deed your mortgage before a notary public.

But despite the fact that the decision has no real effect, the episode of the mortgages has caused deep wounds in the Third Room, which was split during the plenary. The resolutions reported by the Supreme contain harsh criticism of the judges of one and the other side against the opposite. The 15 judges who voted that the tax of mortgages return to be in the client considered that the change of criteria above, the adopted by the Second Section in the judgement of 16 October that was assigned to this tribute to the bank, was a “drastic shift” case law “as unexpectedly as a radical” and that, moreover, “lacks justification”.


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These assertions were disobedient to the magistrates who voted in favor of the tribute paid by the bank and, as usual, before writing their individual votes, agreed to the text of the judgment signed by the majority. In his writings, throw hard criticisms, like “the harsh tone employed in the sentences” and accused his companions of the hall have damaged the image of the high court.

there Were 13 judges who voted in favor of the tax fell on the bench, but only 11 have signed individual votes. You have not done so, nor Cesar Tolosa or José Díaz Delgado. This last belongs to the second section and was one of the six that signed the sentence of 16 October.

in Addition, the magistrate José Manuel Bandrés, which endorsed the decision of the majority, has signed on a vote in which adds precisions to the statement signed by the board and proposes alternatives that already presented in the plenary to reach a consensus, among them, the possibility of taking the case to the Court of Justice of the European Union or the Constitutional.

individual Votes


The more hard the individual votes is the one signed by the two co-rapporteurs of the judgment of October, Francisco José Navarro Sanchís and Jesus Cudero, who disavowed the full. To this vote they also add the magistrates Eduardo calvo and Ángel Aguallo. Criticize the decision of the chairman of the İllegal Bahis board, Luis Díez-Picazo, of bringing the matter to the full “after perceiving event, the serious significance of economic and social failure”: they argue that what I was pursuing the judgment signed by the majority is “to provide a channel to a reprimand that was unheard of” to the section expert in taxes “for the reasons so hot, as expressed, that cause great confusion and perplexity, when you read in a judgment of the Supreme Court”; and they assert that the legal arguments employed in the resolution “become anemic, fall by their own weakness and come to be replaced by the disqualification hurtful”. The letter, written by Navarro Sanchís, calls it a “new and undesirable practice hunting” hunting, in your opinion, has lived in the room against the judges who signed the judgment of October.

it is Also very hard the particular vote signed by Jose Mauel Sieira, the predecessor of Díez-Picazo in the presidency of the Third Chamber. This veteran judge believes has not been complied with “loyalty” with the sections of the room and warns of the damage to the reputation of the high court. “If the Supreme Court puts into question the value of his jurisprudence, how it may be ordered respect to the same” question Sieira.

The 15 judges who signed the ruling supported that the second section had powers to change the criteria which had been kept for years, but believe that in this case was not justified because there had been no change in law or other circumstance that motivated. The only thing that has been, say the judges, is “a different interpretation of the same rules and legal principles” on the part of judges, experts in taxes, most of them recent addition to the room. Admit no more his new approach could “lead to the arbitrismo court and that a possible alteration economic situation of the composition of a judicial body, referee —as it is not unheard of to happen for various legal reasons— leading to the modification of the jurisprudence,” says the judges.

The judgment of the Third Chamber contradicts the main argument in the second section based its decision that it was the bank which had to pay the tax: the bank is the only one benefited by the loan deed before a notary. According to the 15 judges, in a transaction of the character “complex” as it is the home equity loan, the business basic legal, “raison d'être of the entire operation of the contract”, it is the loan, while the mortgage guarantee business is a “derivative and servant of the above”, without which it would not exist. “Well, if that is so, it is clear that from a tax point of view it is the loan which you must guide the interpretation of the tax consequences that are de rigueur”.

Correction criteria

the judges is “certainly unusual” is any question of the rectification adopted by the plenary of the room. “The rectification of a judgment of a section through part of the full a room is not anything that needs attention or which could give rise to the argument, certainly unusual, having passed sentence on a question in a section, as would have formed jurisprudence that would make inadmissible the intervention of the plenary session. On the contrary, falls within the ordinary,” said the judges. To understand otherwise, they add, “it would be like to hold that the assignment of cases to the sections, which is agreed annually by the board of Government at the proposal of the president of each section, it is a luck attribution competencial exclusive that prevents the full assume the fixation of doctrine.”

The room charge is also hard on the judges who signed the judgment of October for not respecting the dozens of resolutions in the opposite direction dictated by the Supreme. According to the 15 judges who signed the ruling, the second section did an analysis, “fragmentary and partial” of the existing case law and ignore all the resolutions that were, between them, issued by the Constitutional Court in 2005 to endorse article 68 of regulation of the tax on documented legal acts that the resolution of October was overturned by considered contrary to the law.

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