The banks gave the appellant the financing it required for the planning and construction of the buildings, on the basis of the contractual system that was presented to them in full, and not on the basis of any declaration as to the nature of the right acquired by it For Purchase Tax Purposes.
- The appellant did not acquire a "right in real estate" in the framework of the "Buyer's Price" tenders Real Estate Taxation Law, for two main reasons: the first – the appellant did not at any point in time have the legal right to hold the land for a period longer than 25 years; The second – even within the time frame in which she held the land, the appellant's possession was not as a lessee in accordance with the definitions of the Real Estate Taxation Law.
- The appellant was not given an enforceable legal right to lease the land for a period exceeding 25 years. According to Section 9(a) According to the Real Estate Taxation Law, a purchaser of a right in real estate will be liable for purchase tax. Section 1 The law defines a "right in real estate" as "ownership, or lease for a period exceeding twenty-five years." The term "lease for a period" is defined as "the maximum period that the lease can reach according to any right that the lessee or his relative has by virtue of an agreement or by virtue of a right of choice given to the lessee or his relative in the agreement." Therefore, in order for a lease to be considered a "real estate right", the necessary condition is that the lease period should exceed 25 years, and a shorter period does not amount to a "real estate right" and is not subject to purchase tax.
- In order for the appellant to have a lease right for a period exceeding 25 years, it is required that she have, after signing the agreement, a legal, certain, clear and enforceable right to hold the land for a period exceeding 25 years, to the extent that the appellant wishes to do so. However, at the time of signing the lease the appellant did not receive such an enforceable legal right, and in fact according to the contractual system that was signed, the building contract and the appendix of the special terms – which prevail over the provisions of the lease contract – the appellant can hold the land for no more than a few years.
The State reserved the right and sole discretion to instruct the appellant at what time it should transfer the land to the eligible tenants, and the appellant did not have the right to choose whether to hand over the apartments to the occupants or to keep them in her ownership for a period exceeding 25 years.
- Although in the lease contract signed by the parties, the lease period defined in the contract is 98 years, with the possibility of an extension for an additional 98 years, the provisions of the Special Terms Appendix that was attached to the standard lease contract prevail over the provisions of the standard lease contract. In case law and in the legal literature, it has been determined that the test for the existence of a lease right for a period exceeding 25 years is that at the time of signing the contract, the purchaser will be given a certain, clear and unequivocal legal right, which can be enforced, according to which the lease period will exceed 25 years.
- The essence of the "Buyer's Price" tender is to enable young couples without an apartment to buy an apartment for themselves, according to a lottery to be held by the Ministry of Construction and Housing as soon as possible, with a maximum period of time to be a few years. In addition, within the framework of the agreement reached by the appellant and the state, the appellant undertook to sell the apartments it would build to the occupants, and in light of the essence of the "Buyer's Price" project, it is clear that the delivery of the apartments will take place within a short period of time, and certainly not on a date exceeding 25 years.
- The appellant had no discretion or right to choose to keep the land or apartments with her for a longer period for any reason whatsoever, and she was obligated to sell the apartments she built to the beneficiaries.
According to the rules set by the State and detailed in the documents sent by the control company to the appellant, detailed timetables were set for the execution of each action, from the stage of obtaining the building permit, through the holding of the lottery, and ending with the signing of a sale agreement between the appellant and the occupants.