Deriving the maximum economic benefit from the land and controlling it go hand in hand, since in order to maximize the economic enjoyment, it is required that the lessee have a broad possibility to carry out actions in the land according to his best discretion, to decide on the nature and manner of use of the land, the timing and scope of its use, to determine and fence the risks that he wishes and is able to take in relation to the land in order to maximize its use, and he must also be allowed to enjoy the fruits of his actions.
See: Aharon Namdar, Real Estate Appreciation Tax, Part One, The Basis of Tax (Seventh Edition, 2012) (hereinafter - Namdar's bookOn pages 157-158:
"The obligation to pay betterment tax, according to the law, is limited only to properties that meet the definition of a "right in real estate". This right includes, first and foremost, the proprietary rights recognized under Real Estate Law. However, not every "objective" right will constitute a right in real estate according to the law. The legislature recognizes as a right in real estate only a right that grants its owner the maximum economic benefits, but not "minor" rights that leave the maximum economic benefit in the property in the hands of another. ...
The purpose of Real Estate Taxation Law is to tax the appreciation generated from the sale of capital assets that are closely related to real estate. What characterizes these "assets" – which are called a "right in real estate" by the law – is not the fact that they are "proprietary" rights within the meaning of the Land Law, but rather The degree to which they identify with real estate or with the maximum ability to enjoy economic enjoyment from it.
Thus, for example, rights such as "usufruct" and "right of precedence" are not considered a right in real estate under the law, despite the fact that they are property rights. ...
The common denominator of rights that are considered a right to real estate is the fact that they give their owners the ability to enjoy the land to the fullest. Real Estate Taxation Law, based on "economic content", emphasizes economic exploitation more than about securing the owner's right to the property itself, as is customary in property law."
- The determination of whether a right has been granted, which consolidates the maximum economic benefits from the property, is a matter for the Appeals Committee to answer, after a material examination of all the facts that were placed before it and of the legal documents embodying the right that was granted.
The mere fact that the right was given by the parties, or by any party, a title and designation as a "lease" or as a "right in real estate" does not mean that it is indeed a "right in real estate" and a substantive, in-depth and substantive examination is required, in accordance with the legal, taxation or economic content of the factual and contractual basis that is subject to examination and decision.
- First and foremost, and at the very least, it is required that the right granted include the exclusive possession of the entire real estate asset, and not only in part, None Significant limitations and limitations on the part of the lessor. Without The lessee does not have the possibility of controlling the exclusive possession of the land, at his discretion, and therefore he will not even have the possibility of maximizing the economic exploitation of the land.
Moreover, and accordingly, it is required that the lessee have the maximum opportunity to determine the nature and scope of the use of the land (within the framework of the provisions of the planning and building laws and the limitations of real estate, and subject to reasonable limitations, which are accepted in lease agreements, such as limitations regarding the infringement of the right and not deviating from the purpose for which the right was leased) in order to be able to enjoy the optimal and maximum economic enjoyment from them.