ATO Interpretative Decision
ATO ID 2002/325 (Withdrawn)
Income Tax
Gifts/Contributions by executor of deceased estate - property held more than 12 monthsFOI status: may be released
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This decision has been withdrawn as it does not correctly reflect the ATO viewThis document incorporates revisions made since original publication. View its history and amending notices, if applicable.
This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Issue
Can the executor of a deceased estate claim a deduction under subdivisions 30-A and 30-B of the Income Tax Assessment Act 1997 (ITAA 1997) in respect of a gift of property to a higher education institution?
Decision
Yes. The executor of a deceased estate can claim a deduction against the assessable income of the estate under subdivisions 30-A and 30-B of the ITAA 1997 in respect of a gift of property to a higher education institution.
Facts
The taxpayer is the executor of a deceased estate. As the executor, the taxpayer has made a gift of property from the estate to a higher education institution within the meaning of the Employment, Education and Training Act 1988 (EET 1988).
The property was purchased more than 12 months prior to gifting.
The gift of property has been valued by the Commissioner of Taxation at more than $5,000.
Reasons for Decision
Division 30 of the ITAA 1997 provides an income tax deduction for gifts or contributions made to a fund, authority or institution.
Section 30-15 of the ITAA 1997 provides the criteria that must be satisfied before a gift qualifies as a deduction to the donor.
For a gift of property to a higher education institution (within the meaning of the EET 1988) to qualify as a deduction, the following criteria must be satisfied:
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- the gift must be cash, or property valued by the Commissioner of Taxation at more than $5,000; and
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- the higher education institution must be mentioned by name in subdivision 30-B of the ITAA 1997.
Schedule 1 of the EET 1988 lists the higher education institutions that fall within item 2.1.3 of subsection 30-25(1) of the ITAA 1997.
The recipient higher education institution is mentioned in Schedule 1 of the EET 1988.
As the taxpayer is gifting the property as an executor of the estate, the deduction is allowable against the assessable income of the estate and not the assessable income of the taxpayer. Accordingly, the taxpayer as executor is entitled to claim a deduction equal to the value of the gift of property as determined by the Commissioner of Taxation, against the assessable income of the estate.
Year of income: Year ending 30 June 2002 Year ending 30 June 2003
Legislative References:
Income Tax Assessment Act 1997
section 26-55
section 30-15
section 36-15
subdivision 30-A
subdivision 30-B
the Act
Keywords
Deceased Estates
Executor of deceased estate
Gifts & donations
Gifts to organisations
ISSN: 1445-2782
| Date: | Version: | |
| 22 February 2002 | Original statement | |
| You are here | 22 August 2002 | Archived |