The Supreme Court of Justice agrees to the VAT exemption on mortgage loans. Who applies?

On November 6, 2024, the Supreme Court of Justice of the Nation (SCJN) resolved a protection trial direct requested by a legal entity against article 15, section I, of the Value Added Tax Law. The reason for this was the disagreement regarding the commissions and other considerations that the borrower must cover to his creditor on the occasion of the granting of mortgage loans for the acquisition, expansion, construction or repair of real estate intended for residential purposes, except those that originate subsequent to the approval of the aforementioned credit or that must be paid to third parties by the borrower.

In its lawsuit, the company stated, among other matters, that the referred rule is contrary to the principle of legal certainty and causes uncertainty, by not specifying whether the payment exemption programmed therein is applicable to both natural and legal persons. The Collegiate Court denied the protection, contrary verdict to which the legal entity filed an appeal for review.

The resolution of the matter

The First Chamber concluded that the claimed article does not violate the principle of legal certainty, since, upon its literal, systematic, teleological and historical interpretation, it can be established that the exemption contained therein is intended to benefit those people who, directly, They receive a mortgage loan to acquire, expand, build or repair their own home. This exemption, related to the right to housing, can only apply to natural persons and not to legal entities.

In this way, given that the exemption was not intended to privilege people who participate in an economic activity (such as those that are part of the real estate market, whether construction companies, financial intermediaries, etc.), nor is it aimed at benefiting a type or species of service provided (such as the granting of any mortgage loan), It is concluded that its recipient is who is constituted as the final buyer of this type of goods, that is, the person who agrees on a mortgage loan to be able to buy, acquire or repair their own home.

Therefore, the purpose of the exemption prescribed in that provision is not adaptable with the nature of a legal entity, since the latter is made up of people who meet for a primarily economic purpose.

With these reasons, the First Chamber affirmed the contested ruling and denied the requested protection.

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