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A taxpayer queried whether establishing a mortgage to secure the payment of a debt recognised in a matrimonial property regime settlement is exempt. The DGT ruled that, as the operation involves a debt rather than a loan, it is subject to tax.
Cuestión planteada Tributación por la constitución de esa hipoteca y, en su caso, si esa operación estaría exenta.
La constitución de una hipoteca en garantía de una deuda, y no de un préstamo, constituye una transmisión patrimonial onerosa sujeta al tipo del 1%. El sujeto pasivo es la persona a cuyo favor se constituye el derecho real. La exención de los préstamos no es aplicable en este caso porque la garantía no respalda un préstamo.
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