Zvi Friedman, CPA, Committee Member:
I have read very carefully the learned and detailed opinion of the Honorable Chairman of the Committee, Justice H. Kirsch. I agree with the conclusion that the appeal should be dismissed, and I would like to add a few words to emphasize:
The interpretation of the term "undertaking on the part of the seller" - whether to interpret a specific interpretation or an expansive interpretation - was not discussed directly in the Supreme Court, but indirectly in other municipal applications 20/4278 Mary Lesman et al. v. Central Land Taxation Administration, following an appeal filed with the Supreme Court against the judgment of the Appeals Committee headed by the Honorable Justice Gorman. The Supreme Court ruled unanimously in a short judgment:
"We examined the texts, and added and heard the arguments of the appellants' counsel. Since we did so, we saw no reason to request an oral answer from the respondent's counsel, and we commented on what we had commented... Therefore, the appeal was dismissed. "
In these sharp and clear statements of the Supreme Court, the Court in fact adopted the approach of the Appeals Committee in the matter of Marc, according to which , when the following two cumulative conditions are met, we are dealing with the purchase of a "residential apartment" for the purpose of purchase tax. The first is that a material examination of the purchased property shows that in fact the purchaser sees before him the purchase of a "residential apartment", in the sense of an "apartment on paper"; The second is to give an expansive interpretation of the term "undertaking on the part of the seller", according to which if the seller has a bundle of rights that includes an enforcement undertaking to finish the construction and transfers this undertaking to the buyer, then it is an "undertaking on the part of the seller".
In my opinion (and I concur with the opinion of the Honorable Chairman of the Committee, Kirsch, as stated in his opinion in paragraph 31), there should be no difference whether we are dealing with the transfer of the right that was received in a combination transaction, since even in a combination transaction of the type of partial sale, construction services are ordered on the part of the land that remains in the hands of the owners, and the transfer of the right of land that was purchased and the construction services that accompanied thereafter, and the transfer of the right to purchase a residential apartment that was purchased directly from a contractor ("an apartment on paper"), to another purchaser under the same conditions. In all of the aforementioned cases, in light of the Supreme Court's statements in the matter of Marking, if the aforesaid is fulfilled, it is a matter of purchasing a "residential apartment" for the purpose of purchase tax.