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V3073-17 23 November 2017 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
ITPAJD · base imponible

The tax base for AJD on mortgages is the amount of the obligation or guaranteed capital

A query was raised regarding whether the tax base for the Stamp Duty (AJD) on a mortgage should be the property value if it is lower than the loan amount. The Directorate-General for Tax (DGT) ruled that the tax base is the amount of the obligation or the guaranteed capital, in accordance with the Mortgage Law and the TRLITPAJD.

The question raised

Determination of the tax base for the purposes of the settlement of the Transfer Tax and Documented Legal Acts Tax, in its Documented Legal Acts modality, as a consequence of a public deed for the creation of a mortgage loan, considering that the real value of the property is the maximum amount for which the property may be liable and, therefore, the maximum amount of the loan capital that may be understood as guaranteed by means of a mortgage, regardless of whether its value is below the amount of the loan granted.

The DGT's ruling

The tax base in the Documented Legal Acts modality for the creation of a mortgage consists of the amount of the obligation or the guaranteed capital. This amount includes interest, indemnities, penalties for breach, or other analogous concepts. If the amount of the guaranteed sum is not expressly stated, the base shall be taken as the capital plus three years of interest.

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