1012751887775 | Legal database

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Edited version of your written advice

Authorisation Number: 1012751887775

Ruling

Subject: Capital gains tax - deceased estate

Question

Will the Commissioner exercise his discretion under subsection 118-195(1) of the Income Tax Assessment Act 1997 (ITAA 1997) and allow an extension of time to the two year period?

Answer

Yes

This ruling applies for the following period:

Year ending 30 June 20YY

The scheme commenced on:

1 July 20XX

Relevant facts and circumstances

The deceased purchased the property. It had always been their principal place of residence and had not been used to produce income.

Following the deceased's death, the property remained vacant.

Various issues relating to the will of the deceased delayed probate being granted.

You obtained legal advice and were in the process of dealing with the various issues relating to the will for an extended period of time.

You were the sole executrix and beneficiary of the estate.

Sale of the property and settlement occurred during the relevant income year.

Relevant legislative provisions

Income Tax Assessment Act 1997 Subsection 118-195(1)

Reasons for decision

Subsection 118-195(1) of the ITAA 1997 allows a trustee of a deceased estate to disregard a capital gain or loss from a dwelling that a deceased person acquired after 20 September 1985 if:

• the property was acquired by the deceased before 20 September 1985, or

• the property was acquired by the deceased on or after 20 September 1985 and the dwelling was the deceased's main residence just before the deceased's death and was not then being used for the purpose of producing assessable income, and

• your ownership interest ends within 2 years of the deceased's death (the Commissioner has discretion to extend this period in certain circumstances).

The following is a non-exhaustive list of situations in which the Commissioner would be expected to exercise the discretion:

• the ownership of a dwelling or a will is challenged,

• the complexity of a deceased estate delays the completion of administration of the estate,

• a trustee or beneficiary is unable to attend to the deceased estate due to unforeseen or serious personal circumstances arising during the two year period (eg the taxpayer or a family member has a severe illness or injury), or

• settlement of a contract of sale over the dwelling is unexpectedly delayed or falls through for reasons outside the beneficiary or trustee's control.

In this case, issues relating to the will delayed the granting of probate.

Having considered the particular circumstances of this case, the Commissioner will apply his discretion under subsection 118-195(1) of the ITAA 1997 and allow an extension to the two year time limit.

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