Overview
- The dispute between the parties is whether the combination transaction was indeed cancelled retroactively, as the appellant claims, or whether it remained valid and existed, as the respondent claimed, so that the agreement in the framework of which the parties sought to cancel the combination transaction is nothing but a "resale".
- As stated, according to the respondent's approach, this is not a cancellation of the transaction, since Maslawi actually received possession of the land and even made changes to it and treated it as an owner's custom, including demolishing a building and renting a parking lot, and acted to make a planning change that improved the land. The respondent further emphasizes the long period of time that has elapsed since the combination agreement was signed until its cancellation, i.e., a period of 18 years.
The appellants, on the other hand, emphasize the fact that the main and substantial undertaking that Maslawi undertook to build an office building and commercial uses was not fulfilled, due to external circumstances that are not dependent on it, and therefore this is a "real" cancellation that was made for economic reasons and not for the purpose of obtaining any tax advantage. In any case, according to them, the transaction was not absorbed into reality and should be seen as if it was canceled retroactively.
- I will preface by saying that in this dispute between the parties , there is room to decide in favor of the respondent, to adopt his assessment and to reject the appeals.
I will add that already at the end of the evidentiary hearing, the Appellate Committee recommended that the appeal be withdrawn, in view of the factual basis that was laid out before it in the course of the hearing, and at the very least, because the appellants did not present an evidentiary basis that could support their position; The clear impression that was created is that taking into account the long period - 18 years - that has passed since the conclusion of the combination agreement until its initial cancellation, as well as taking into account the substantial actions carried out by Maslawi during that period - i.e., the registration of a warning note, financial calculations and arrangement of loans to Lorenzi, the demolition of the building, the promotion of the zoning plan that improved the land, renting it out for the purpose of a parking lot and collecting the rent (even if part of the rent was transferred to Lorenzi) and granting the option of tzach - Actions that indicate Maslawi's business involvement and the fact that she practiced the owner's custom in the real estate - the combination transaction was absorbed in a real and significant way in the real world, and therefore it is not a case of cancellation of the transaction, but rather of a resale. However, the appellants stood by their opinion and requested that a judgment be issued.