By Francisco R. Serantes Peña
I am going to dedicate today’s entry to make certain reflections that arise to me as a consequence of an issue that we have on the table these days.
The order of the Supreme Court of November 23, 2022 (Rec. 2923/2022) admits the appeal filed against an order of the Superior Court of Justice of the Valencian Community in a matter related to an incident of execution of sentence in which We, as a recurring party, requested the proportional reduction of the guarantees offered and constituted to guarantee compliance with certain tax settlements, requesting the cancellation of the mortgage registration on certain properties.
After several resolutions in which the TSJ seemed to agree with us, the contested order denies us the possibility of canceling the mortgage on several properties, indicating that it must be reduced proportionally without any registration.
We will summarize the facts, so that the matter is better understood:
1. As a result of an inspection procedure, a VAT settlement and a corporate tax settlement are issued, which are appealed before the regional economic-administrative court.
2. To obtain the suspension of the execution of both settlements, a single mortgage was constituted on a total of 176 real estate, although the deed of Mortgage Constitution itself established a maximum mortgage liability on each one of them.
3. By means of a judgment of the Superior Court of Justice of the Valencian Community, the contentious-administrative appeal filed against the VAT settlement, the amount of which amounted to €167,523.97, was upheld, canceling the entire debt.
4. As the foreclosure is suspended, we request the release or cancellation of the registration of ten properties, whose maximum mortgage guarantee according to the mortgage deed amounted to less than the canceled debt (166,523.97 euros).
5. The Chamber of the TSJ of the CV estimated the partial release of the constituted mortgage, and agreed to the partial lifting of the same on the properties indicated by this part.
6. Despite what was indicated by the Chamber of Valencia, the AEAT refused to issue an agreement to cancel the mortgage or lift the mortgage charge, for which reason we urged the forced execution of the sentence in order to release the indicated properties.
7. After processing the allegations to the State attorney’s office, the Chamber of the TSJ of the CV, considered executed the sentence with the reiteration of the declaration of partial release of certain properties, without it being translated into any registry entry. To this end, it notes that:
“… there was only a single mortgage guarantee on several properties for two tax debts, in the present case in which the 2006 VAT was annulled, it will mean that the guaranteed obligation is reduced by the sum of 166,523.97 euros, but the mortgage guarantee subsists because it is indivisible (art. 122 LH), which is why the lifting of the mortgage on certain properties will be partial and because of the amount of the canceled debt, which led us to dismiss the foreclosure incident and file the procedure.
Likewise, we do not share the mention of art. 124 LH of the appellant, since it is inapplicable to the present case, since it contemplates the case of mortgages divided between several properties, for the case that, once a credit that encumbers one of them has been paid, the mortgage on that property can be canceled, all Once we are faced with a case of a single mortgage on all the properties to guarantee all the debts, that is, the case of art. 122 LH, and we accept this rule to dismiss the appeal for reinstatement”.
Statement of the question
The order indicates that the following question is of objective appeal interest for the formation of jurisprudence:
“Determine whether, when a unilateral mortgage has been formalized on several properties as guarantee of the suspension of the execution of several liquidations, the annulment of one of them in judicial proceedings entitles the appellant to partially cancel the mortgage on certain real estate orOn the contrary, the cancellation must be made proportionally on all the mortgaged assets”.
The AEAT states that only one mortgage was constituted, that is, “that the mortgage charge that falls on the aforementioned farms not only guaranteed the 2006 VAT settlement but also a 2006 Corporate Tax settlement. That is, there were several obligations guaranteed with said farms and they were not constituted in their day, as many mortgages as obligations were guaranteed, but only a single mortgage was constituted that jointly guaranteed several obligations (VAT 2006 and Companies 2006).”.
Thus, the AEAT considers that the principle of indivisibility of the mortgage prevents canceling part of the guarantee, since all the farms are responsible for all debts.
The Chamber of the TS will resolve the issue and for this, it will have to study the civil regulations and their connection with the Rights and Guarantees of Taxpayers.
The judicial decision we understand that infringes the arts. 79, 80, 119, 122 to 125 of the Mortgage Law. Specifically, art. 80 LH provides that:
“Article 80.
It may be requested and must be decreed, where appropriate, the partial cancelation:
First. When the property object of the registration or preventive annotation is reduced.
Second. When the right registered or recorded is reduced”.
And article 124 LH:
“Article 124.
Divided the mortgage constituted for the security of a credit among several farms, and part paid of the same credit with which any of them is encumbered, Partial cancellation of the mortgage may be required by the person to whom it is interested. as for the same farm. If the part of the credit paid could be applied to the release of one or the other of the encumbered properties because it is not less than the amount of the special responsibility of each one, the debtor will choose the one that is to be released.
The Chamber is based on the indivisibility of the mortgage of art. 122 LH which states:
“The mortgage will remain intactas long as it is not canceled, on the totality of the mortgaged assets, even if the guaranteed obligation is reduced, and on any part of the same assets that is conserved, even if the rest has disappeared; but without prejudice to what is provided in the following two articles”.
On the contrary, the art. 124 LH (by express reference to art. 122) allows, in the case of a mortgage that falls on several properties, to apply the payment to the release of one or the other of the mortgaged properties, with the consequent partial cancellation. It is true that there is no payment, but there is also extinction and it must be applied analogically. It is true that the payment is not literally the annulment of a settlement, but in both cases an extinction of the credit (in this tax case) is included, so that given the total silence of the rule for the express case, it must be resorted to by analogy to the application of article 124 LH, in accordance with the provisions of article 80 LH and all this in connection with the Law of the Taxpayer (art. 34.1c) LGT).
It is true that the thesis of the specialty is supported by the fact that in the mortgage the responsibility of each property has been divided up to a maximum amount of responsibility, although the solution should be the same in my opinion.
And we said that the civil solution, which we understand leads to the cancellation of the registration of the mortgage on a few farms, should be examined through the prism of the taxpayer’s rights.
Indeed, the contested judicial decision of the Valencia Chamber has infringed the harms. 34.1 c) LGT (as well as the implementing regulations, 52.3 b) and c) and 67 of the Revision Regulation, RD 520/2005):
“Article 34. Rights and guarantees of taxpayers.
1. The following constitute rights of taxpayers, among others:
a) {…}
b) {…}
c) Right to be reimbursed, in the manner established in this law, the cost of guarantees and other guarantees provided to suspend the execution of an act or to postpone or split the payment of a debt, if said act or debt is declared total or partially inadmissible by judgment or final administrative resolution, with payment of the legal interest without the need to make a request to that effect, as well as the proportional reduction of the guarantee provided in the cases of partial estimation of the appeal or the claim filed”.
The art. 34.1 c) LGT expressly allows the proportional reduction of the guarantee provided in cases of partial estimation of the resource, so that the denial of the reduction of the guarantee is not in accordance with the legal text invoked. Thus, even if the civil solution were another (which I do not believe) it should be corrected with the existence of the proclaimed right.
Two more final thoughts.
If, in order to obtain the suspension through a guarantee other than a guarantee, you have to guarantee several mortgage debts or mortgages on several properties, you may have to consider making several mortgages of the same rank, as many as debts or liquidations in order to avoid these problems.
Finally, highlight the importance of Taxpayer Rights and Guarantees. The 25th anniversary of Law 1/98, of February 27, on Taxpayer Rights and Guarantees, which was a milestone in the tax legal relationship, will soon be fulfilled.
Since that critical moment, many of us think that we have done no more than regress in that position from citizens to a status of taxpayers before the State.
Law 58/2003, General Taxation established in its article 34 a list of rights and guarantees of the taxpayer and based on the codifying tendency, the LGT propitiated the repeal of the Law of Rights and Guarantees of Taxpayers.
In this way, a Law was repealed that, due to its importance, we should demand that it be reformulated, written and dictated again. I believe the existence of a Law that includes the list of rights and guarantees that returns them to the preponderant place from which they should never have left is necessary.
Tax Lawyer
