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V0952-21 19 April 2021 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
OTRO · actos jurídicos documentados

Liability for Stamp Duty on loans depends on the type of security: mortgage, non-mortgage, or unsecured

The inquiry concerns who is liable for tax in a loan to a developer. The DGT clarifies that the taxable person varies depending on the type of security: if it is a mortgage, the lender is liable; if it is another type of security interest, the borrower is liable; and if there is no security or only personal security, no tax liability arises.

The question raised

1.- Determine who the taxpayer is, whether the financial institution or the developer.

The DGT's ruling

If the loan is secured by a mortgage, the taxpayer is the lender. If the security is different from a mortgage (such as a pledge or antichresis), the general rule applies and the taxpayer is the borrower. In loans without security or with personal guarantees, the transaction is not subject to the tax. It is not possible to apply exemptions by analogy if the transaction is subject to tax.

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