Practical Legal Notes - April 2025

1.- It is possible for a company with a revoked tax identification number to execute a deed if it is ordered by a judicial authority.

It is linked (HERE) Tax Consultation issued by the General Directorate of Taxes, at the request of a question posed by the Notary of Castro Urdiales Mr. José Javier Corral Martínez (and made known by the same in a post on his more than interesting LinkedIn profile), in relation to a company, whose Tax ID number has been revoked by the Treasury for years, which, in a judicial proceeding, is sentenced, in a final judgment, to formalize the sale of a parking space in favor of the plaintiff.

The judicial resolution (obligation to sell) collides in principle with DA 6 of the LGT and art. 23 of the Notary Law, which prohibit the Notary to authorize deeds whose grantor has a revoked NIF.

However, in this case, as resolved by the DGT, the sale is ordered by a final court decision, so that the abstention indicated above in the aforementioned regulations is not applicable, so that the deed can be granted.

2.- Webinots. Technological issues, CSV copies and electronic protocol.

Attached (HERE) link to an online training session, given by the Association of Notaries of Catalonia, dedicated to the study and analysis of digital notarial developments in Spain. It addresses in particular the implementation of Law 11/2023, the development of the electronic protocol and the growing use of electronic authorized copies with CSV.

Very interesting session to get up to date on this new modality of electronic authorized copies, the process for their creation and validation by third parties, their possibilities of use in practice for legal operators, etc.

3.- Future developments in the matter of pre-emption and withdrawal in the city of Barcelona.

We link(HERE) a press release from the Barcelona City Council, where it is announced the initial approval, by the Barcelona City Council, of the new ordinance of the right of first refusal (pending final approval by the Plenary). In it, the technical criteria are developed on the basis of which the administration will decide whether or not to exercise this right, among which are:

• The regulation prioritizes the purchase of properties with more than ten dwellings, empty apartments or buildings with vulnerable people, people with disabilities or in neighborhoods at risk of gentrification.
• The municipality may waive the right to purchase a property and assign this right to third parties or public housing developers, to the legal occupants of the property or to private or non-profit developers whose purpose is the promotion of subsidized housing (with which, in practice, it is possible that the number of cases in which this right of first refusal is exercised will increase significantly).
• The ordinance also provides for the opening of a web site with access to beneficiary entities to consult the properties subject to the rights of first refusal in which the city council has no interest.
• With respect to the right of withdrawal, the period for agreeing to exercise this right has been extended to three months.
• The ordinance foresees that, when communicating the transaction to the administration, more information will have to be provided than has been the case to date. In particular, it will be necessary to inform whether the sale is planned in a single joint transaction, or in several transactions in favor of different purchasers, and it will also be necessary to identify the potential purchaser or purchasers.

To follow up on the matter once the rule is definitively approved, which will provide more legal certainty and predictability to those who, if applicable, are involved in operations where this right of the administration is applicable.

4.- Digital DNI and Notary's offices. Soon it will be possible to sign your deed with the digital DNI.

It is linked (HERE) article published in the blog of the Notary's office, related to the novelties of the digital ID and its practical application in the day to day of a Notary's office.

As indicated in said article, since a few weeks ago, it is already possible to obtain a digital version of our DNI through a mobile app, which is fully valid and effective, as if it were the traditional physical DNI that all Spanish citizens have.

For its use in a Notary's Office when signing a public document, however, it will still be necessary to wait a few months, because as the regulation itself indicates and as reflected in the Communication 1/2025(HERE you can consult it), an adaptation period of 12 months is established so that the Technological Center of the Notary's Office can make the necessary technological innovations for the proper functioning of this new digital resource.

5.- New developments in taxation of stamped electronic notarial documents

It is linked (HERE) the Order HAC/305/2025, of March 27, which approves the electronic stamped notarial documents, by virtue of which, relevant novelties are introduced in the matter of taxation of electronic notarial documents.

Thus, as established in the regulation, the new electronic notarial documents (specifically, the "electronic matrix folio" and the "electronic authorized copy folio for third parties"), in accordance with the ITP Law, are subject to the Stamp Tax (Actos Jurídicos Documentados), notarial documents and, therefore, to the so-called fixed rate of this type of taxation.

On this basis, the Order designates the General Council of Notaries as the new obliged subject, since this institution assumes the function of centralizing the information and guaranteeing the correct allocation of the tax to the corresponding public entities, under the control of the Tobacco Market Commission.

The collection and settlement procedure is similar to that already in place for physical stamped documents, so that each month the General Council of Notaries must send the Tobacco Market Commission a detailed report on the revenue obtained and the number of electronic documents used, broken down by Autonomous Community. Subsequently, the Commissioner will verify the information and communicate it to the Directorate General of the Treasury and the AEAT, who will manage the payment of the tax to the Public Treasury. The Autonomous Communities will receive the corresponding collection according to the assignment of the tax in their respective territories.

Pending formalization of its development and technical implementation for its full start-up, which may entail a significant cost increase in the public documents to be authorized.

Likewise, the annex of Order HAC/305/2025 establishes the technical specifications of these documents, which must comply with the ISO 19005 standard. Thus, each stamped folio will include security information such as:

• Unique identifier in alphanumeric format.
• 2D code with unique identifier.
• Image of the Spanish government stamp and coat of arms in specific color.
• Stamp number encoded with the identifier of the corresponding Notarial Association.

Purchase and sale of real estate, exercise of resolutory condition and re-registration of the real estate in favor of the seller. Requirements for this

Attached(HERE) Resolution of the General Directorate of Legal Security and Public Faith of February 27, 2025 (BOE of March 22, 2025), in which the General Directorate resolves a case related to a unilateral termination act for breach of contract by virtue of which, the selling company of a property, declares the unilateral termination of the purchase and sale contract, for lack of payment by the buyer, requesting the re-registration of the property in the name of said selling company.

In this interesting and long resolution, a very good summary is made on the conditions and requirements that must be met in order to be able to reinscribe the property in favor of the seller in application of a resolutory condition, that is:

• That the buyer has not paid one of the installments.
• There must be a willingness to default on the part of the buyer.
• The seller must have fulfilled all his obligations.
• In order for the sale to be settled, the seller must demand payment from the buyer by court or notary.
• The re-registration in favor of the seller, by way of a requirement to the buyer ex art. 59 RH, inexcusably requires the consignment of the amounts that the buyer had delivered as part of the price, and this even in the case that there are no holders of subsequent charges to be cancelled.

7.- It is necessary to indicate the CNAE of the main activity in a change of corporate purpose.

Attached(HERE) Resolution of the General Directorate of Legal Security and Public Faith of February 25, 2025 (BOE of March 26, 2025), in which the General Directorate resolves a case related to a deed of modification of the corporate purpose of an SL, where the company deletes from its corporate purpose one of the various activities that, to date, composed it, without expressly mentioning the CNAE that the SL must maintain or present from that moment on.

This criterion is confirmed by the DG in the appeal being resolved, literally stating that "both the registration of the incorporation of the company and the registration of the modification of the corporate purpose must necessarily contain the activity code corresponding to the main activity carried out by the company, which code must be the one that best describes it and with a sufficient breakdown".

8.- Prohibition of disposition and expiration of its term. It is not necessary its express cancellation to formalize the transfer.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of March 4, 2025 (BOE of April 5, 2025), in which the General Directorate resolves a case related to a deed of sale that is formalized in September 2024.

Presented for registration, the same is denied by the Registrar, alleging that there is no record of the prior cancellation of the prohibition of alienation encumbering the property, which had a duration of 3 years, counting from April 20, 2016.

Against this qualification, the authorizing Notary lodged an appeal before the DG, which revoked the qualification note, alleging in summary that the prohibition to dispose that encumbers the properties was stipulated for a term of three years from the date of the deed of sale of the buyers (April 20, 2016), so that, it is clear, therefore, that at the time when the transfer referred to in the appeal takes place (September 6, 2024), the term of three years that was stipulated has already elapsed. Thus, even though our legislation is based on the principle of rogation, as has been the case with the request for cancellation of the resolutory condition, in the present case, being a deed of sale whose registration is sought, the request for cancellation of the prohibition to dispose must be understood as implicit.

9.- Reservation of denomination in a new company. It cannot be made by the administrator if he/she is not a partner.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of March 11, 2025 (BOE of April 4, 2025), in which the General Directorate resolves a case related to a deed of incorporation of a company, where the reservation of the corporate name is made by a natural person who is appointed as sole administrator of the new company in the same deed, without being a founding partner of the same.

The Mercantile Registrar denied the registration under Article 413-2 RRM, by virtue of which the reservation of the company name must be made by a founding partner, this criterion being confirmed by the General Directorate in the appeal that is being resolved. It serves as a reminder for all entrepreneurs who want to create a new company.

10.- Purchase and sale with price to be determined in the future is admissible.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of March 12, 2025 (BOE of April 4, 2025), in which the General Directorate resolves a case related to a deed of sale, where the parties agree that part of the sale price will be determined in the future (based on a system referenced to the price of a future sale, minus the expenses of the operation updated based on the CPI).

The Land Registrar refuses the registration, arguing that, in essence, the part of the price relating to the current sale is not determined and cannot be determined.

Upon appeal, the DG revoked the qualification note, applying the case law and doctrine in force, according to which "there should be no objections when the parties have established objective procedures on how to carry out the pricing", as in this case, where it is objectively verifiable the parameters to be applied (future sale price minus expenses updated to CPI) to determine that part of the outstanding price.

11.- Tax flash. Inversion of the taxpayer

Attached (HERE) link to Fiscal Flash of the Fiscal Commission of the Notarial Association of Catalonia, where the interesting fiscal figure of the inversion of the VAT taxable person in a transaction of transfer of a real estate under a contract of purchase option between a commercial entity and a cooperative is approached.

For this purpose, DGT Consultations 197 and 198 of 2025 are analyzed, where the DGT uses a restrictive criterion, by virtue of which the concurrence of an execution of a guarantee is considered as an essential element, so that, if the retention of part of the price of the transfer is destined by the buyer to the cancellation of the mortgage charges, the assumption of inversion of the taxpayer would not be applicable.