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Edited version of your written advice
Authorisation Number: 1012773582986
Ruling
Subject: capital gains tax
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, until 30 June 2015.
This ruling applies for the following period
Year ended 30 June 2015
The scheme commences on
1 July 2014
Relevant facts and circumstances
The deceased passed away in 2013.
The deceased owned a property which was purchased prior to 1985. It was their main residence until they passed away.
Real estate agents were retained to conduct a sales campaign.
A successful auction was conducted in 2014.
A sales contract was entered into by the purchasers and settlement was set for 2014.
Prior to settlement, the real estate agency advised that the house had suffered storm damage.
As a consequence, the purchaser declined to settle the sale.
Several quotes for repair of the damage were obtained.
These quotes were used as the basis of a proposed reduction in the sale price to allow settlement to proceed.
The purchaser would not enter into negotiations to reduce the sale price.
Action has been undertaken to repair the house. Approval has been received from the insurance company and work should commence shortly.
It is anticipated that settlement will occur by 30 June 2015.
Relevant legislative provisions
Income Tax Assessment Act 1997 subsection 118-195(1)
Reasons for decision
Subsection 118-195(1) of the ITAA 1997 states that if you own a dwelling in a capacity as trustee of a deceased estate, then you are exempt from tax on any capital gain made on the disposal of the property if:
• the property was acquired by the deceased before 20 September 1985, 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 Commissioner can exercise his discretion in situations such as where:
• 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 (for example, 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 circumstances outside the beneficiary or trustee's control
You have an ownership interest in a property if you have a legal interest in the property. This means that if you sell a property, your ownership interest continues until the date of settlement (rather than the date the contract of sale is signed).
In this case, settlement of a contract of sale has been unexpectedly delayed. Having considered the circumstances and the factors outlined above, the Commissioner will exercise his discretion to extend the 2 year period to 30 June 2015.
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