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As you acquired the dwelling before 20 September 1985, any capital gain you make is exempt. However, major capital improvements you make to the dwelling on or after 20 September 1985 may be taxable (see Major capital improvements to a dwelling acquired before 20 September 1985).
a. The deceased acquired the dwelling before 20 September 1985 (it does not matter whether the dwelling was the main residence of the deceased person).
You may have an ownership interest in a dwelling that passed to you as a beneficiary in a deceased estate or you may have owned it as trustee of a deceased estate. In either case, any capital gain or capital loss you make from a CGT event that happens in relation to the dwelling is disregarded if either of the following applies:
- you disposed of your ownership interest within 2 years of the person's death. This applies whether or not you used the dwelling as your main residence or to produce income during the 2-year period or
- from the deceased's death until you disposed of your ownership interest, the dwelling was not used to produce income. For this period, the dwelling must also have been the main residence of one or more of:
- a person who was the spouse of the deceased immediately before the deceased's death (but not a spouse who was permanently separated from the deceased)
- an individual who had a right to occupy the home under the deceased's will or
- you, as a beneficiary, if you disposed of the dwelling as a beneficiary.
The dwelling can be the main residence of one of the above people (even though they may have ceased living in it) if they choose to treat it as their main residence under the continuing main residence status after dwelling ceases to be your main residence rule.
b. The deceased acquired the dwelling on or after 20 September 1985.
Any capital gain or capital loss you make when a CGT event happens in relation to a dwelling or ownership interest in a dwelling you inherit will be disregarded if:
- condition 2 in (a) above is met and the dwelling passed to you as beneficiary or trustee on or before 20 August 1996. For this to apply, the deceased must have used the dwelling as their main residence from the date they acquired it until their death and they must not have used it to produce income or
- one of theconditions 1 or 2 in (a) above is met and the dwelling passed to you as beneficiary or trustee after 20 August 1996, and just before the date the deceased died it was their main residence and was not being used to produce income.
A dwelling can still be regarded as the deceased's main residence even though they ceased living in it if they or their trustee chose to treat the dwelling as the deceased's main residence. This may happen if-for example, the person moved to a nursing home. You may need to contact the trustee or the deceased's tax adviser to find out whether this choice was made.
If it was, the dwelling can still be regarded as the deceased's main residence:
- for an indefinite period if the dwelling was not used to produce income after the deceased stopped living in it or
- for a maximum of 6 years after they ceased living in it if it was used to produce income after they ceased living in it.
Rodrigo was the sole occupant of a home he bought in April 1990; that is, after 20 September 1985. He did not live in or own another home. He died in January 1999 and left the house to his son, Petro. Petro rented out the house and then disposed of it 15 months after his father died. Petro is entitled to a full exemption from CGT as he acquired the house after 20 August 1996 and disposed of it within 2 years of his father's death.
Last modified: 06 Oct 2009QC 27417