The combination and accumulation of the stipulations and restrictions imposed on the Appellant as a result of the contractual legal framework that it signed after winning the "Buyer's Price" tender – leads according to the law to the conclusion that the Appellant did not acquire a "right in real estate" in the sense Real Estate Taxation Law.
- Moreover, I believe that consideration should also be given to the fact that the building contract was signed Yet that the lease contract was signed. In fact, if we examine the contracts related to the Tirat HaCarmel tender, we will see that the construction contract was signed on November 16, 2016, while the lease contract was signed on January 9, 2017.
In the construction contract for the "Buyer's Price" project in Tirat HaCarmel, it was explicitly stated in the preamble to this contract that:
"Whereas, the Ministry and the ILA have determined As a precondition for allocating the complex to the developer and as a precondition for signing a lease contract of the ILA with the developer, the developer must enter into this contract with the Ministry and to commit to him in all the undertakings specified therein."
In this regard, see also clause 2 of chapter A of the construction contract, which deals with "timetable", which states that the appellant must sign the construction contract within 170 days from the determining date, which is the date of winning the tender, while the signing of the lease contract is within 210 days from the determining date.
- The order in which the contracts are signed also testifies to the true essence of the entire contractual engagements, since it clearly emerges that the construction contract is the main legal document, the signing of which and the fulfillment of its terms are a prerequisite for signing a lease contract. It seems to me that by any legal standard, it is accepted that first the legal document is signed by virtue of which the right in the land is granted – the lease – and only afterwards are the actions that can be performed on the land in relation to which the rights were granted, such as construction, are defined. In our case, the "lease" is granted only on the condition that the building contract has been signed and executed, and this fact is an additional layer in determining the true legal essence and content for tax purposes of all the agreements to which the appellant was signed.
- As noted above, The risks and chances that the appellant faces in entering into the legal contractual system in which it entered, after winning the "Buyer's Price" tenders that are the subject of the appeals, are such that they characterize a contractor-executor, a projector, and do not characterize a person who is supposed to have a "lease" right in the real estate. The appellant is not exposed in the situation of the "Buyer's Price" tender to the risk of a decline in the prices of the apartments or to the risk that it will not sell the apartments and will be left with an inventory of apartments that it is unable to sell. In addition, and as already noted, the appellant is exposed only to the risk that its construction expenses will exceed the price of the square meter of an apartment to which it undertook in the tender, as well as to standard risks to which the contractor-executor is exposed, such as construction defects, etc.
Equally, the appellant's ability to increase its profits exists only if it succeeds in reducing and reducing the planning and construction costs of the "Buyer's Price" apartments.
- At this point, it should be noted that the decision of the respondent who is the subject of the appeals, regarding the application to amend the assessment, determined that the appellant had been sold a "right in the land" according to the first alternative of the definition of "sale".
As stated above, my position is that since that the appellant did not receive – from a material point of view and in terms of content – a "lease" right from the state, in any case the first alternative in the definition of "sale" does not exist according to Section 1 to the Real Estate Taxation Law, and for this reason the appeals should be accepted and the respondent's position should be rejected.
- It should also be reiterated that if the State had no lease rights remaining in its possession with respect to the land that is the subject of the "Buyer's Price" tenders – it would not have demanded and determined that the eligible purchasers are required to sign lease contracts with the ILA – see clause 4.4 of the sale agreement – and would not have required the appellant to include a stipulation establishing an obligation on the eligible purchaser to sign a lease contract. Nor would it have stipulated that an irrevocable power of attorney will be attached to the sale agreement, which allows the appellant to sign On behalf of the eligible purchaser On a lease contract with the ILA in relation to a "sale" as defined in the sale agreement.
- It should also be said that although in the decision to amend the assessment there is reference to the second and third alternatives of the definition of "sale", the reference is not reasoned, but is only in the manner of negating the appellant's position, according to which these alternatives do not apply in her case.
I will briefly clarify that in the case at hand there is no application even to the second and third alternatives in the definition of "sale".