El Supremo se inclina por avalar que paguen los bancos (La Razón)

El Tribunal Supremo (TS) se juega hoy mucho más que desequilibrar la balanza entre los bancos y sus clientes sobre quién paga el impuesto de las hipotecas, el que grava los actos jurídicos documentados cuando se firma ante notario un préstamo hipotecario. El aluvión de críticas a la institución tras dejar en suspenso el presidente de la Sala Tercera, Luis María Díez Picazo, los efectos de la sentencia que el pasado 16 de octubre daba un vuelvo al criterio mantenido por el Alto Tribunal –al forzar a las entidades bancarias, y no a los ciudadanos, a abonar ese tributo– obliga a cerrar filas. Así lo reconocen fuentes de la Sala de lo Contencioso-Administrativo, que apuntan que un buen número de magistrados se inclinan por un «planteamiento pragmático y posibilista», que se traduciría en «no hacer más cambios y dejar las cosas como están». Es decir, ratificar el «giro radical» en la jurisprudencia del TS –como lo definió el propio Díez Picazo– y ceñir el debate a desde cuándo surte efecto la obligación de que sean los bancos los que paguen el impuesto de las hipotecas: a partir de la fecha de notificación de la citada sentencia (y de otras dos que se deliberaron y fallaron el mismo día) o con carácter retroactivo. En este último caso, precisan las fuentes consultadas, la medida « se ceñiría a un aspecto puramente tributario, limitando el periodo a los cuatro años anteriores, el plazo de prescripción».

Pero en la Sala Tercera tienen claro, añaden esas mismas fuentes, que la decisión «trasciende» al impuesto sobre las hipotecas y que también afecta, tal y como están las cosas, al «buen nombre y al prestigio» del Supremo. «Algunos están esperando a que se conozca nuestra decisión para desprestigiar al tribunal, y más con el tema del “procés”», dicen en referencia a las críticas independentistas al cambio de criterio del Alto Tribunal, reclamando también un giro en la causa por rebelión contra los líderes soberanistas. «Han aprovechado la polémica para sembrar dudas sobre la actuación del Tribunal Supremo. Si no es por el independentismo las cosas hubiesen discurrido de forma más tranquila», aseguran. De ahí que sea más necesario que nunca, reconocen, «no dar más motivos para la polémica».

Incluso algún magistrado que piensa defender hoy en el Pleno de lo Contencioso –que estará integrado por 31 jueces– que debe volverse al criterio anterior, mantenido por el Supremo durante los últimos veinte años, admite que le sorprendería que esa posición consiguiese el aval de la mayoría. Entre otros motivos, porque algunos magistrados que defendían esa tesis se la han replanteado en los últimos días y estarían ahora más próximos a ratificar el cambio jurisprudencial para salvaguardar el prestigio de la institución. Pese a todo, hacen hincapié, «está todo muy abierto» porque «no hay un planteamiento claro».

Lo que se antoja más complicado es revestir de unanimidad la decisión que finalmente alumbre hoy la Sala Tercera (aunque es posible incluso que la deliberación se prolongue más de lo previsto y finalmente se aplace la resolución hasta mañana). «La unanimidad será imposible porque quienes firmaron votos particulares en esas sentencias seguro que los mantendrán».

El torbellino jurisprudencial que ha puesto contra las cuerdas a la Sala de lo Contencioso del Tribunal Supremo se originó el pasado 18 de octubre, cuando se conoció la sentencia de la Sección Segunda que obliga a los bancos a pagar el impuesto de las hipotecas. Hasta ese momento, el Alto Tribunal había defendido que debían ser los clientes quienes se hiciesen cargo de ese tributo (cuyo coste oscila, según la comunidad autónoma, entre el 0,5% y el 1,5% del coste de la vivienda hipotecada).

Pero la Sección Segunda concluyó que el que se beneficia de la inscripción registral de la hipoteca es la entidad bancaria (pues puede utilizarla para hacer cumplir lo firmado al hipotecado), por lo que deben ser aquellas las que abonen el tributo que grava ese acto. Sin embargo, apenas 24 horas después, el presidente de la Sala Tercera dejó en suspenso los efectos de esa resolución y avocó al Pleno la cuestión que hoy debe dirimirse.

43 comentarios sobre “El Supremo se inclina por avalar que paguen los bancos (La Razón)

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