Moreover, the appellant's CEO, Mr. Friedman, referred to this matter in the framework of his cross-examination and refuted the respondent's thesis, as if the sale of the apartments relates only to the appellant's obligation to the financing bank. See page 88 of the transcript of the transcript from lines 14-23 and page 89, lines 1-9:
"Q: But there is also a consideration on the part of the bank, again... So you're talking to me about a situation at the end of a project where you've met all your obligations to the bank, and then you're supposedly free to do it, but you're in a situation where a project has started and you have an obligation to the bank to sell apartments at a certain rate.
A: Nope! If I had made the decision that all the apartments or half of the apartments in the project I would designate them for rent at the beginning of the bank support, then this is the accompaniment agreement I would have signed with the bank, when I designate the apartments for sale in advance, then I sign one agreement with the bank. If I decide to designate some of the apartments...
Q: So let's move on to our projects, in our projects the obligation to the bank is to sell the apartments within a stipulated period of time,
A: Because that's the commitment to the state.
Q: No, Kiryat Ono too,
A: I had no right.
Q: Kiryat Ono also the price, apartments on the free market, also there...
A: I have no right. I don't know the agreement, in detail, the agreement with Kiryat Ono, I have no objection, I tell you today, to keep apartments I own that are intended for sale on the free market in Kiryat Ono and not sell them.
Q: Have you completed your obligations to the bank in Kiryat Ono?
A: Nope. But it's my decision, tomorrow I can bring more equity from my sources and remove all the bank's loans and the bank will let me own the apartments."
- Conclusion It must be determined that the appellant did not acquire a "right in the land" in the framework of her winning the "Buyer's Price" tenders, also for the reason that emerges from the totality of the documents, as well as from the testimony of the ILA representative Mr. Yaakov himself, the appellant did not receive the right to hold the land for a period exceeding 25 years.
Conclusion:
- In light of all that was stated in the above judgment, I would suggest to my colleagues that the appeals should be accepted in all their parts, and that it should be determined:
- that conditions were fulfilled Section 85(a)(3) of the Real Estate Taxation Law, and therefore the respondent should be instructed to amend the appellant's self-assessments due to a legal error that was discovered to the appellant only retroactively.
- that within the framework of its winning of the "Buyer's Price" tenders and its signing of the contractual array following this win (lease contract, appendix to special conditions and the construction contract), as well as due to its subordination and obligation to act in accordance with the instructions of the control company appointed by the Ministry of Construction and Housing, the entirety of the legal documents and their unique characteristics lead to the conclusion that the appellant Didn't purchase From the State "Right to Land" in the Meaning of Real Estate Taxation Law - Not in terms of content and substance, since many significant restrictions were imposed on it that deprived it of the ability to hold the land and use it for its own benefit, to derive the maximum economic benefit from the land and to maximize its profits from it; and not in the realm of the period of possession of the land, since the appellant did not receive a certain, known, clear and enforceable legal right for a period exceeding 25 years.
III. In practice, the real legal essence of the engagement between the State and the Appellant following the winning of the "Buyer's Price" tenders, as it emerges from the contractual array to which it was signed, is an engagement with an executing contractor, acting on behalf and on behalf of the State for the purpose of implementing its policy within the framework of the flagship project of "Buyer's Price" and its implementation. All this is done by building "Buyer's Price" apartments and carrying out all the necessary legal actions, as the long hand of the state, in order to transfer them to the buyers, who won the lottery of the Ministry of Construction and Housing, and who are entitled to purchase an apartment at a reduced price according to the eligibility conditions set by the state, as they are homeless or housing improvers.
- As a result of all the aforesaid, the appellant is not obligated to pay purchase tax on the land component in the "Buyer's Price Apartments" project, and each of the respondents must cancel the purchase tax assessments in respect of the aforementioned real estate and return to the appellant the purchase tax paid by it in connection with its winning of the "Buyer's Price" tenders, which are the subject of the appeals.
- that the respondents should be obligated to pay the appellant's expenses and the appellant's attorney's fees in the sum of NIS 100,000, taking into account the scope of the arguments that were made in the framework of the appeals in this case and the unusual position presented by the respondents in the matter Article 85 of the Real Estate Taxation Law.
Committee Member, Adv. Rafael Marciano: I agree and join the judgment of the Committee Chairman, the Honorable Justice Orit Weinstein, in all its parts.