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V2364-24 14 November 2024 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
ITPAJD · hipoteca unilateral

Unilateral mortgages are subject to Stamp Duty and the taxpayer is the party creating the right

A protected cooperative has requested a ruling on whether the creation of a unilateral mortgage is subject to Stamp Duty (AJD) and who the taxpayer is, as well as whether it qualifies for an exemption. The DGT has determined that it is subject to AJD and that the taxpayer is the entity creating the mortgage.

The question raised

Whether the unilateral creation of a real estate mortgage would be subject to the modality of Documented Legal Acts and who the taxable person for the tax would be. And, if applicable, whether, due to its status as a protected cooperative, the unilateral creation of the real estate mortgage would be exempt from the tax.

The DGT's ruling

The creation of the mortgage is not subject to transfer tax on onerous acquisitions as it is carried out by a taxable person for VAT, but it is subject to tax under the modality of documented legal acts. The taxable person is the individual who requests the issuance of the documents, that is, the one who creates the real right of mortgage. The status of a protected cooperative does not exempt the payment, as the creation of the mortgage does not fall within the exemption cases provided for in Article 33 of Law 20/1990.

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