Civil Appeal 7719/21 Saleh Hasarmeh v. Haifa Assessor - part 15

Justice H.  Kabub:

1. Comprehensive and detailed opinion written by my colleague, the judge א' שטיין. According to him, the appeal of the actors Hasarmeh and Abed (Civil Appeal 7719/21 and Appeal Civilian 7730/21, respectively) and to determine that they established the center of their lives in the city of Kiryat Shmona, when they played for the city's soccer team.

On the other hand, my colleague, the judge, thinks Y.  Amit, because their appeals should be rejected.

The main dispute between my friends, the judge שטיין And the Judge Associate, Touching To the question The "center of life" of someone who is a "'resident' in a particular locality" - and its implications with regard to a tax benefit in the locality, which is enshrined in the Section 11 To the Ordinance Income Tax [New Version], 5721-1961 (hereinafter: The Command).  מחלוקת This Lead my colleagues to different results regarding classification The center of life of the appellants, Hasarmeh and Abed, and as a result, to different results with regard to their appeals.

2. I looked at the opinions of my friends. Each of them has its own flavors.  In the end Day, And after I turned things around, I think Because the result that my colleague has reached, The Judge Associate, fits in better with The purposes of the tax laws and the furrow that has been plowed in this matter.
3. Me too, like the judge Associatebelieves that when we come to examine whether a person's center of life is in a particular locality that is entitled to a tax benefit, we must examine the The Totality of Affinities which connect it to the settlement; and we must do so, in essence, on the basis of the indications provided by the legislature in the Section 1 to the command. When it is correct that the benefit should be received only by those who actually live in the beneficiary's locality and manage there, substantially andאֲמִיתִּי, the center of his life.  An examination of a self-assessment based on qualifying residency therefore requires a concrete factual clarification, while giving appropriate weight, in the circumstances of each case, to all the relevant indications.  In the present case, it is clear that Hasarmeh and Abed did not meet the burden of proof that was convenient for them; This is sufficient to dismiss their appeal.

As a result of the above, Even in my opinion, there is no place to establish a starting point, in the form of a kind of presumption that the tax assessor must contradict, according to which the center of a professional footballer's life follows his team.  This, inter alia, is one of the reasons listed by the judge Associate In paragraphs 5-6 of his opinion.  I will add and emphasize that I also think that the accepted view in the United States of America is not applicable as a basis for such a presumption in our country.  At the same time, it should be noted that if these were indeed people who lived a very long distance, prior to joining the group, then it is possible that the point of balance would have changed.  But I wish this is not the case, I will not set any conclusions on this matter.  In conclusion, I will reiterate that in my opinion, each case should be examined on its own merits, in accordance with its circumstances and taking into account the evidence presented by the taxpayer.

4. In view of the above, I am of the opinion that a sweeping determination in a matter of this kind (even in relation to a limited group of taxpayers) is mine-based, and constitutes a deviation from the principle ofEquality between taxpayers andThe Quest for Protection On Neutrality, Characteristic The Legislation TheTax in general and income tax in particular - As it is a tax, which, as is well known, is imposed on the very annual increase in the taxpayer's consumption capacity.

A sweeping determination in relation to one profession or another, which finds expression in the form of a benefit at the perfect income tax rate - Where the benefit is intended to direct behavior, by encouraging settlement in the סְפַ‏ר - It should be done by the state, not by us; And life experience teaches us that things have already happened, even if by other means to benefit the beneficiary community.  This was done, for example, in relation to grants in the medical professions that were found to be in shortage of manpower in the geographic or social periphery, by the Wages and Labor Agreements Division of the Ministry of Finance; and as was done in the system of incentives and compensation for teaching staff in schools that were found to have a shortage of manpower, due to geographical distance.

5. However, we should not, in my opinion, do so by giving primacy or specific weight to one occupation or another; For his alleged or probable contribution in our eyes.
6. Conclusion: With regard to the appeals of Hasarmeh and Abed (Civil Appeal 7719/21 and Appeal Civilian 7730/21, respectively) - I joinף The result reached by the referee Associate and his reasoning; Asher Postpone The group's appeal (Civil Appeal 7722/21) and the issue of fines - I agree with the opinion of my friends, the judges שטיין andAssociate.

Misdeeds

7. After these remarks, I would like to relate, briefly, to what is stated in paragraph 86 of the opinion of my colleague, the judge A' שטיין.

In my opinion, taking into account the well-known rules regarding the division of burdens and the duty of evidence in tax law (and for more on this matter, see the relevant sections inAA 5072/19 Shawarma A.S.  Ltd.  v.  Hadera Tax Assessor, paragraphs 13-34 [Posted inNevo] (09.05.2021), and Civil Appeal Authority 1436/90 Bronze, Investment Management and Services Company in a Tax Appeal v' Value Added Tax Manager, פ"4 46(5) 101), and when we found that "the law of a professional footballer is no different from the law of other fields" (paragraph 7 of the judge's opinion Associate), The Position of My Fellow Justices שטיין, is inconsistent with the starting point in tax appeals - According to which, as is well known, the taxpayer is the taxpayer who appeals the decision of the tax assessor (Civil Appeal 943/16 Contira Technologies inTax Appeal v.  Tel Aviv Tax Assessor 3, paragraph 47 [Posted inNevo] (22.04.2018)).  andThis is all the more relevant, given the rulings of the trial court regarding 'Sharetsky's demand' or 'group policy', which were not anchored in a written agreement, as noted by the judge Associate In paragraph 11 of his opinion.  Therefore, I am of the opinion that in the present case the apartments rented for Hasarmeh and Abed cannot be regarded as "a pleasure that is wholly or primarily for the purpose of the job", which is not subject to income tax.