Since 2006, the General Tax Law has included the possibility of using the value assigned for the appraisal of mortgaged properties in compliance with the provisions of mortgage legislation as a means of carrying out a value check.
This means of verification has been used, fundamentally, by the Autonomous Communities in the framework of property acquisitions when the purchaser requires mortgage financing or in situations of financing, awards or acquisitions of assets with mortgage charges.
The General Tax Law enables the use of the appraisal used in mortgage processing to verify value.
However, the Superior Courts of Justice have been very critical of the procedures instructed by the Autonomous Communities when they have used this valuation method. In different rulings, the use of this means of valuation was rejected without including in the settlement some type of motivation that justified elements such as the effective visit of the property, the identification of the witnesses used or that the mortgage valuation is related to the concept of value. actual value checks.
These demands were justified by the demanding doctrine of the Supreme Court regarding value verifications that use administrative expert reports as a means of valuation.
However, the Supreme Court in rulings of December 4 and 9, 2024 (ECLI:ES:TS:2024:5943 and ECLI:ES:TS:2024:6016) has established a much less demanding doctrine in cases of use of mortgage appraisals as a means of verifying value.
Thus, as long as the valuation has been issued in compliance with the requirements of the mortgage regulations, the Supreme Court does not require any additional burden for the Administration with respect to the other means of verifying values, so it is not obliged to previously justify that the value assigned for the appraisal of mortgaged properties coincides with the value adjusted to the taxable base of the tax, nor the existence of any element of fraud that must be corrected.
The Supreme Court considers that the certification of the appraisal without the appraisal report is sufficient support to carry out the value verification, since it is a synthesis of the technical appraisal report and accredits its existence, so it should be considered a sufficient document. to support the motivation for starting the values check. This doctrine implies a significant reinforcement of many regularizations carried out by the Autonomous Communities with respect to the ITP and AJD since it implies the existence of a means to carry out value checks that makes possible opposition by taxpayers difficult.
The operations that are most often subject to this type of verification are real estate transactions in which the acquisition is financed by a mortgage loan and in which the buyer obtains an appraisal of the acquired property that is higher than the purchase price. Likewise, operations that will be affected by this doctrine are those transactions on real estate portfolios that are subject to appraisal by the transferring entity.
There does not have to be an identity between the purchase and sale price, which is usually the value indicated by taxpayers as the tax base for the ITP and AJD, with the value of these appraisals. In the case of mortgage appraisals obtained for the financing of the purchase and sale transaction, the rights of the taxpayer appear to be safeguarded since they will be in a position to obtain the complete appraisal report, if they do not already have it. However, when the appraisals have been requested by the seller, the admission of the certificate without requiring that the complete report be included may represent a reduction in the defense of the taxable person.
On the other hand, it must be remembered that the TEAC, in its resolution of January 9, 2014 (RG 2358/2010), established as conditions for accepting the validity of the value assigned for the appraisal of mortgaged properties, strict compliance with the requirements that It must meet the appraisal value in application of mortgage legislation, which are:
a) That the deed of constitution of the mortgage determines the value at which the interested parties appraise the property so that it serves as a type for the auction.
b) That the appraisal is accredited by certification from the competent services.
c) That the appraisal be recorded in the mortgage deed itself and registered in the Property Registry.
d) That if the appraisal had been carried out before, it should be recorded in said deed and in its registration in the Property Registry.
If these formal requirements are not met, the mortgage valuation should not be admitted.
Finally, it is worth remembering that the taxable person can always reduce this value through a contradictory expert appraisal by selecting a third expert, although the practical possibilities of reducing the settlement seem reduced since the starting value should have already been set. by a real estate expert meeting the sectoral requirements.
#endorses #mortgage #appraisal #means #verifying #values
