In addition, it was argued by the Respondent that as a result of the Appellant's claim that she did not acquire a "right in real estate" within the meaning of the Law, that she acquired another capital right, which was sold by her in parts as apartments to those who are eligible, and therefore the Appellant was obligated to report to the Tax Assessor a capital sale within 30 days from the date of the sale and to pay advances on capital gains according to Section 91(d) to the command. The appellant did not claim and did not prove that she acted in this way, and therefore she received various benefits in the form of not imposing fines for not reporting on time, charging linkage and interest differences, etc. All of this, the appellant establishes against the appellant, according to the respondent's approach, a claim of judicial estoppel.
- The appellant, for her part, argues that the claim of estoppel is unfounded and should be rejected. According to her, there is no legal difficulty in her claim that she did not acquire a "right in land" within the meaning of the law, as opposed to the fact that she sold residential apartments to those entitled to it, which constitute a "right in the land". The appellant clarifies that the beneficiaries sign a lease contract directly with the ILA, which remains the owner of the land.
In addition, the appellant's argument is that there is no contradiction between her claim in the present appeals, which relates to the question of whether she acquired a right in the land, and her reports to the respondent following the sale of the apartments to those who are eligible.
As to the approvals under Article 50 The appellant's position is that the failure to file a motion to cancel them does not amount to a "contradictory claim" that establishes an estoppel, and in any case the appellant was required to pay income tax in accordance with the Section 2(1) for the sale of the rights in the apartments to those who are eligible, and not betterment tax, so that the tax result is identical, and therefore there was no need to amend the report according to Article 50 to the law. The appellant raises an identical argument in relation to the argument regarding the failure to report to the tax assessor the sale of a capital right, and in any case the appellant argues that she did not sell a capital right, but rather a right that is not capital. Based on the opinion of Shmuel Marko, CPA, the Appellant argues that the rights it acquired in the "Buyer's Price" tenders, although they are not a "right in real estate" within the meaning of the law, constitute business inventory, as reported in its library, which is subject to income tax according to Section 2(1) to the Ordinance, and therefore Chapter E of the Ordinance and the section do not apply 91(d) to the command.
- I did not find any substance in the claim of estoppel raised by the respondent, which in any case was argued by him with laxity and lacunity.
First, as I have held above, the appellant met the threshold conditions of Section 85(a)(3) and raised the burden of proving the preliminary condition that it had made a legal error in its interpretation of all the agreements signed by it after winning the "Buyer's Price" tenders, and that only during 2019 did it receive tax advice from external tax experts, and accordingly submitted the request to amend the assessment.