Edited version of private advice

Authorisation Number: 1052413428001

Date of advice: 15 July 2025

Ruling

Subject: Commissioner's discretion - extension of time

Question

Will the Commissioner exercise the discretion under section 118-195 of the Income Tax Assessment Act 1997 (ITAA 1997) to allow an extension of time for you to dispose of your ownership interest in the dwelling and disregard the capital gain or capital loss you made on the disposal?

Answer:

Yes. Having considered your circumstances and the relevant factors the Commissioner will allow an extension of time. Further information about the Commissioner's discretion can be found by searching ato.gov.au for 'QC 66057'.

This private ruling applies for the following period

Year ending 30 June 20XX

The scheme commenced on:

1 July 20XX

Relevant facts

The deceased passed away on xx xx 20xx.

The deceased owned a dwelling (the dwelling).

The deceased also owned adjacent vacant land situated at the rear of the block used in association with the dwelling.

The dwelling was the main residence of the deceased and both the dwelling and adjacent vacant land were never used to produce assessable income.

The total land size of the dwelling and adjacent vacant land is less than 2 hectares.

The dwelling was acquired by the deceased and their spouse as joint tenants prior to 20 September 1985; with the deceased becoming the sole registered proprietor following the death of their spouse.

The dwelling was the main residence of the deceased from the date of acquisition until the date of passing.

The dwelling has been vacant since the deceased passed away.

Multiple Wills were in existence at the deceased's passing.

Child A and their sibling, child B made competing claims over the deceased's estate.

On XX XX 20XX, Child A filed a statement of claim seeking a grant of probate in respect of one of the Wills.

On XX XX 20XX, Child B filed a cross claim seeking a grant of probate in respect of another Will.

On xx xx 20xx, Child B through their solicitor, contacted Child A to enquire about the management of the dwelling and requested that the parties jointly appoint an interim administrator.

On xx xx 20xx, Child A confirmed that they did not consent to the appointment of an interim administrator. They also noted that the dwelling had sustained flood damage and that they were overseeing the repairs, including some additional minor cosmetic repairs.

On xx xx 20xx, Child B filed a notice of motion seeking the appointment of an interim administrator.

A Supreme Court Justice adjourned the proceedings until xx xx 20xx.

After hearing from the parties, the Court made orders for a special grant of administration of the deceased's estate to an independent administrator (administrator) pending the termination of the contested probate proceedings.

On xx xx 20xx, Child A filed a summons seeking leave to appeal the Courts decision to appoint an administrator.

On xx xx 20xx, the Court of Appeal dismissed application for leave to appeal.

On xx xx 20xx, Child A filed further amended statement of cross claim seeking to issue letters of administration in respect of one of the Wills and abandoned their family provision claim.

On xx xx 20xx, Child A, their children, and Child B executed a deed of settlement resolving the dispute and in which Child B consented to probate of one of the Wills.

Probate was granted on xx xx 20xx.

The transmission application for the dwelling to the estate was executed on xx xx 20xx.

The dwelling and adjacent land were listed for sale a short time later.

On xx xx 20xx, the executor of the estate entered into a contract of sale for the dwelling and adjacent land and settlement took place on xx xx 20xx.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 118-195

Income Tax Assessment Act 1997 section 118-120

Income Tax Assessment Act 1997 section 118-165