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V3397-20 23 November 2020 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
ITPAJD · actos jurídicos documentados

Release of a mortgage loan co-debtor is subject to Stamp Duty

A query was raised regarding whether the release of a spouse from mortgage loan liability, following the liquidation of community property, is subject to Stamp Duty (AJD). The Directorate-General for Taxes (DGT) ruled that it is subject to the tax, as it constitutes an act independent of the liquidation of the matrimonial property regime.

The question raised

1.- Whether, in application of the doctrine of the Supreme Court, the release of a co-debtor of a mortgage loan is subject to the payment of IAJD when this derives from or is a consequence of the agreements and adjudications of a judicially approved settlement of the community property regime and, therefore, the released party is one of the spouses.

The DGT's ruling

The release of co-debtors in a public deed of a mortgage loan is subject to the modality of documented legal acts. The taxable person is the one who requests or applies for the notarial document. The tax base is the mortgage liability from which the co-debtor is released (outstanding principal, interest, and other concepts). The exemption for the settlement of community property is not applicable as it is an independent legal act.

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