There are various occasions and no apartment is similar to another. Therefore, the sequence in this manual in combination with advice from an expert will bring a risk-less decision and wellbeing to the sellers.
Is the sold apartment can be considered as an Entitled Residential Apartment?
In case that there is a cause for exemption – Is the family selling the apartment complies with 1 or more of the causes for exemption (there are five causes for exemption). This review includes the most common four causes.
Exclusions – was the sold apartment granted to the family as a present?
A present means the apartment itself, a land or money to fund the purchase.
The sold apartment has construction rights – check and calculation of the tax liability and exemption in respect to the worth of the apartment and to its construction rights that were not utilized yet.
The request for exemption – it should be requested per the procedure and a special form should be filled.
A. The apartment used for residence continuously during the four years prior the sale or during of full period of its ownership or leasing.
B. The use for residence was during 80% of the time from the 01.01.1998 or from the date of purchase (per the latest) until the day of sale. In this option it's not mandatory that the use for residence will be consecutive.
The family selling the apartment should sell all its rights in it, and it includes all family members, a spouse that were properly married and their unmarried kids until the age of 18.
As an exception, exempted sales of apartments for residence to a descendant or a spouse that occurred in the period of four years prior to this sale are being “ignored”. There are additional exceptions.
B. Cause for Exemption per Section 49B(2) – per this cause, it is possible to sell the apartment in case that the part of the family selling it is more than 25%, that it's the sole apartment of the family in Israel and in the Area in the sale day and during the four years prior to the sale.
Moreover, it is possible to get an exemption per this cause only if more than 18 months passed since this cause was utilized in a sale of another apartment. The family will be considered as having a “single apartment” for the matter of this cause, also if it has, in addition to the sold apartment, another apartment that its part in it is less than 25%, or if it has another apartment that was rented under the protected lease conditions until the 01.01.1997 or if it has an apartment that was purchased during the 12 months prior to the mentioned sale.
C. Cause for Exemption per Section 49B(5) – per this cause, it is possible to sell the apartment in case that it was accepted as an inheritance from a grandparent, a parent or a spouse. The seller should be a descendant of the deceased or a spouse of the descendant. Moreover, the legator should have only one apartment in his possession on the day that he died, and if he would sell the apartment, he would be entitled for exemption per one of the causes in this chapter.
D. Cause for Exemption per Section 49E – per this cause, it is possible to sell the apartment under the following terms:
It's being sold within 12 months since another apartment, for which an exemption was granted for one of the previous causes, was sold.
It was sold by an Israeli Resident.
Moreover, the family selling the apartment must purchase a new apartment which its value is minimum 75% from the value of the two apartments that were sold. The exemption for the 2nd (sold) apartment will not be granted if the value of the two sold apartments will be higher than 3,256,000 NIS. Moreover, if the value of the two sold apartments is higher than 1,957,000 NIS but less than 3,256,000 NIS the selling family will be liable to tax for that part of the value of the apartment which is higher than 1,957,000 NIS (per its value). * (the values are being updated and should be checked before the sale).
If the seller did not live in the apartment regularly and it was accepted from a parent, then the seller will have to wait for 3 years until it can be sold, even if, as said, he complies with all the other terms. If the apartment was accepted from someone else, he will have to wait for 4 years until it can be sold.
In case that the seller did live in the sold apartment regularly, and it was accepted from a parent, he will have to wait for two years until he will be able to sell it. If the seller is married or a single-parent – he will have to wait for a year from the day it was accepted. If the apartment was accepted from someone who is not his parent, the seller will have to wait for 3 years until it can be sold.
There is an importance to the percentage from the area of the apartment that was accepted as a present: if the part of the apartment that was accepted as a present is bigger than 50% from its full size and the seller does not comply with the waiting periods, his tax liability will be calculated based on the full size of the apartment. But, if the part of the apartment that was accepted as a present is lower than 50% from its full size – it does not considered as a present – and no cooling-off period is needed. We should remember that when a lot is being accepted as a present, a calculation of the ratio between the worth of the lot and the worth of the completed home should be done as to the date when the construction will be completed. The ratio should be calculated per the worth of the lot as to the day when the construction was completed in comparison to the worth of the lot including the home. If the ratio is more than 50% and there is no compliance with the waiting periods, the tax liability will be calculated per the full price of the sold apartment. If this ratio is less than 50%, then the sold apartment is not considered as a present and no cooling-off period is needed.
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Dorit Gabay, CPA – Pay Less. Legally