At the same time, the judge noted Y. Amit In his judgment in the matter of GanginaIn an abridged article and more than necessary, that to the extent that the taxpayers served not only as owners of the company but also as managers thereof, it is possible to consider whether this would lead to the application of the presumption at least with respect to part of the receipt received. However, in that matter it was not necessary to decide this question, and therefore the judge left it Y. Amit In the event of an accident ( Gangina Paragraphs 14-16 of the judge's judgment Y. Amit). It should be noted that in the matter of Gangina The Judge A. Baron, who joined the judge Y. Amitand to the bulk of his reasoning, it noted that according to its approach, the presumption does not apply when there is no employee-employer relationship between the taxpayers and the company that paid the receipt in respect of the non-competition clause (Matter Gangina, the judge's opinion A. Baron).
- Equipped with the above normative foundation, we will move on to the classification of the receipt that is the subject of this appeal. I will begin with the question of the applicability of the "presumption of 'possession' in our case, then I will move on to the classification of the receipt that Kahane received, and finally I will address the rule set forth in section 89(c) of the Income Tax Ordinance.
- I. Applicability of the presumption that payment given to an employee is a fruitful income
- The first question that arises in this part of the analysis is whether there is an application to the "presumption of presumption" that was established in the Barnea case, according to which a payment given to an employee in the framework of a non-compete undertaking is a fruitful income. It should be noted that in view of the result it reached, the District Court was not required to decide this question in the framework of the judgment that is the subject of this appeal.
As explained above, the receipt given to Kahane in respect of the non-competition clause was not given to him by the employer - Eisenberg Company, except by a third party - The acquiring company, which sought to prevent competition not only on the part of Eisenberg but also on the part of Kahane, who served both as the owner of all the shareholders in the company and as a manager and a major professional in the company. This factual situation is similar in its fundamental characteristics to the situation discussed in the matter Ganginain which the company's shareholders, who also served as directors of the company, received receipts from the company that acquired the activity of the company they owned, due to non-competition.
- As I noted above, in the Gangina case, Justice Y. Amit commented (more than necessary) that even though the presumption established in the Barnea case does not apply when the receipt was not given in the framework of an employee-employer relationship, when the taxpayer served both as an employee and was a shareholder, it is possible to consider whether the presumption applies in relation to part of the amount.
It seems that in accordance with the judge's remark Y. Amit In our case, too, it is possible to ponder whether there is room for the applicability of the presumption that was established in the matter Barnea For the receipt that Kahane received (who served both as the owner of the Eisenberg company and as an employee of the company) from the acquiring company that is not his employer.