Mortgage in favour of the Public Treasury and Social Security: requirements, taxation and cancellation

To guarantee compliance with this obligation, the Administration usually requires a real guarantee, normally a mortgage on real estate over assets of the debtor themselves or of a non-debtor mortgagor.

This instrument, although less well known, is of great practical importance and presents legal and tax particularities that are advisable to know, especially in its constitution, acceptance, and cancellation.

These mortgages are mainly established in three cases:

Provided for in articles 65 and 82 of Law 58/2003, General Tax Law (LGT) and in Royal Decree 939/2005, General Collection Regulation (RGR).

Regulated in articles 28 and 29 of the Royal Decree 1415/2004, approving the Social Security Collection Regulations, supplemented by the provisions of articles 14 and following of the Order TAS/1562/2005, of 25 May and article 49 of the Order TAS/3512/2007, of 26 November.

In accordance with the collection regulations of each Autonomous Community.

The Administration may accept or require the establishment of a mortgage when the debtor proves that they cannot provide a bank guarantee. The guaranteed amount normally includes the principal, surcharges, interest and costs, and the total duration of the deferral cannot exceed five years.

The Tax Agency regulates these guarantees in articles 44 to 48 of the RGR, allowing the establishment of a unilateral real estate mortgage in favour of the State.

The competent body for its acceptance is the Collection Delegation or Office responsible for resolving the deferral, and the acceptance is formalised by means of an administrative document (art. 48.8 RGR).

Article 32 of the General Regulation on Social Security Collection allows the deferral of debts secured by a mortgage, except for contributions related to work accidents or occupational diseases.

Article 33 specifies that the guarantee must cover the principal amount, surcharges, interest, and costs, and must be formalised within 30 calendar days from the notification of the granting.

The acceptance and cancellation are carried out by means of an administrative document issued by the Provincial Directorate of the General Treasury of the Social Security.

Each regional government has its own Collection Regulations, which adapt the state model.

In Catalonia / Catalunya, the mortgages established in favour of the Agència Tributària de Catalunya (ATC) guarantee debts arising from transferred taxes (ITP, AJD, ISD) or own taxes, in accordance with the Consolidated Text of the Public Finance Law of Catalonia.

The mortgage must be formalised in a public deed, in accordance with article 145 of the Mortgage Law, and registered in the Property Registry.
The acceptance by the Administration shall be recorded by means of a marginal note, with retroactive effect to the date of constitution.

Article 141 ML expressly provides that if acceptance is not recorded “after two months have elapsed since the request”, the mortgage may be cancelled at the request of the owner of the property, without the need for the creditor’s consent.

This procedure is set out in article 237 of the Mortgage Regulations, which requires a prior notarial request to the creditor and a public deed of cancellation.

The Directorate General, in resolutions of 12 June 2017, 7 May 2018 and  21 May 2021, has reiterated that mere knowledge of the mortgage by the creditor does not replace the formal request.

If several properties are mortgaged, the distribution of mortgage liability must be made among them, in accordance with article 119 LH.
The so-called “joint mortgage”, in which each property is liable for the total amount, is not permitted.

This was confirmed by the Resolution of the DGRN of 16 May 2012, even when the Administration had arranged it otherwise.

The address for notification purposes must be stated in the deed.
Following the reform of Royal Decree-Law 6/2023, article 682.2 of the Civil Procedure Act requires legal entities to mandatorily provide an email address, which is optional for natural persons.

The establishment of a real estate mortgage in favour of the Administration is subject to the Documented Legal Acts (AJD) modality of the ITPyAJD, as it meets the requirements of article 31.2 TRLITPyAJD: public deed, economic value, registrable inscribability, and exclusion of other modalities.

Article 45.I.A TRLITPyAJD declares exempt the State, Autonomous Communities, Social Security and public bodies.

Therefore, although the operation is subject, the beneficiary Administration does not pay tax, and the taxpayer does not bear the tax.

The Supreme Court Judgments of 16 July 2015 and 26 September 2016 established that:

• The Administration is the taxpayer of the tax, upon acquiring the real right of mortgage.
• The operation is exempt under article 45.I.A.
• The implicit acceptance derives from the deferral resolution and the formalisation requirement.

The Court specified that the subsequent acceptance has retroactive effects, preventing double taxation.

The TEAC (3-12-2013) confirmed that unilateral mortgages in favour of the Public Treasury are exempt from AJD, as the Administration is the acquirer of the right.

The Directorate General of Taxes, in consultation V1209-12, specified that the subsequent acceptance does not constitute a new taxable event.

In Catalonia, the ATC applies the exemption of article 45 TRLITPyAJD to mortgages constituted to guarantee debts of assigned or own taxes, coordinating the marginal note of acceptance with the Property Registry.

Furthermore, the real encumbrances of articles 79 and 80 LGT must be taken into account, which can coexist with the mortgage.

The cancellation can occur through two means:

1. Express repudiation by the Administration. If the creditor expresses in writing their intention not to accept the mortgage, it can be cancelled by public deed.
2. Requirement and expiry of the legal period. If two months pass from the notarial requirement without acceptance, the owner can unilaterally cancel, in accordance with art. 141 LH and 237 RH.

The Resolution of 17 June 2013 requires that the requirement be formal.

The STS of 11 March 1991 allows it to be carried out by registered mail with acknowledgment of receipt.

The notarial intervention is essential: the notary verifies the registered ownership, the adequacy of the administrative title, the distribution of responsibility and the identification of addresses for notifications.

When a commercial company is involved, the notary must indicate whether the mortgaged asset constitutes an essential asset or not, according to art. 160.f) LSC.

The resolutions of the Directorate General of 11 June 2015, 12 June 2020 and 6 November 2024 state that the declaration of the administrator is sufficient, unless the essential nature is evident, in which case a shareholders' meeting resolution must be required.

At JLA Notarios, Notaries in Barcelona, special attention is paid to the accuracy of the deed's content, guaranteeing its full registration and tax validity, and advising to avoid issues in acceptance or cancellation.