Hipotecas unilaterales en garantía de deudas tributarias: consideraciones críticas sobre la interpretación administrativa de los artículos 2.2 y 29 del TRLITP

Abstract

The standard practice of taxpayers offering mortgages as a guarantee for the suspension, deferral or payment by installments of tax debts is to formalize them as unilateral mortgages regulated by article 141 of the Spanish Mortgage Act. Until recently, it was understood that the Spanish tax authorities considered themselves to be the entity liable for the payment of the tax arising from the granting of the deed creating the unilateral mortgage and that the deeds therefore benefitted from the exemption under article 45.I.A) of the Transfer Tax and Stamp Duty Act. Binding ruling V2304-10 of 26 October 2010 altered that approach. In the context of this new framework, the authors critically analyze the reasons put forward by the tax authorities justifying the change in their previous criteria.