Edited version of your written advice

Authorisation Number: 1012939892587

Date of advice: 20 January 2016

Ruling

Subject: CGT - deceased estate - Commissioner's discretion to extend the two year period

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 until settlement?

Answer

Yes.

This ruling applies for the following period

Year ended 30 June 20ZZ.

The scheme commences on

1 July 20YY.

Relevant facts and circumstances

The deceased acquired a dwelling (the dwelling)

The deceased passed away in 20VV.

The dwelling was the deceased's main residence.

The beneficiaries of the estate are the deceased's children, ('A') and ('B')

'A' resided in the dwelling from the deceased's date of death until 20XX.

The deceased's will did not provide a right to occupy the dwelling or a life interest.

The deceased's will appointed, a professional executor ('Trustee') to administer their estate.

'A' has a medical condition. The medical condition limited their ability to maintain the dwelling.

The lack of maintenance caused the dwelling to deteriorate.

The Trustee visited the dwelling on numerous occasions and corresponded with 'A' with a view to assisting 'A' move out of the dwelling so that the dwelling could be sold.

'A' delayed moving out of the dwelling and resisted attempts made by the trustee to facilitate the sale of the dwelling.

An application was made in 20WW to the appropriate state tribunal for an administrator to be appointed for 'A'.

An administrator was appointed and 'A' moved into a nursing home in 20XX.

The Trustee attended the dwelling and determined that work needed to be undertaken to prepare the dwelling for sale.

The Trustee and 'A's administrator were required to organise for 'A's personal belongings and furniture to be removed from the dwelling, which delayed the sale.

The dwelling was prepared for sale and a real estate agent was engaged in 20YY.

The dwelling has been sold and settlement is due in 20ZZ.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 104-10

Income Tax Assessment Act 1997 subsection 118-130(3)

Income Tax Assessment Act 1997 section 118-195

Explanatory memorandum to the Taxation Laws Amendment Bill (No.9) of 2011 (Cth)

Reasons for decision

A capital gain or capital loss may be disregarded under section 118-195 of the ITAA 1997 where a capital gains tax event happens to a dwelling if it passed to you as an individual and a beneficiary of a deceased estate or you owned it as the trustee of the deceased estate.

For a dwelling acquired by the deceased prior to 20 September 1985, you will be entitled to a full exemption if:

• the dwelling was, from the deceased's death until your ownership interest ends, the main residence of one or more of the following individuals:

• the spouse of the deceased immediately before death (except a spouse who was living permanently separately and apart from the deceased)

• an individual who had a right to occupy the dwelling under the deceased's will, or

• an individual beneficiary to whom the ownership interest passed and the CGT event was brought about by that person, or

• your ownership interest ends within two years of the deceased's death.

In your case, when the deceased died, the dwelling passed to you. The dwelling was the deceased's main residence prior to death, and at that time, was not being used to produce assessable income. However, the dwelling was not occupied by a relevant individual after the deceased's death and therefore this basis of exemption is not available.

Subsection 118-130(3) of the ITAA 1997 provides that where the sale or other disposal of the dwelling proceeds under a contract, the ownership interest ends at the time of settlement of the contract of sale and not at the time of entering the contract.

The dwelling sale settled more than two years after the deceased's death, therefore, the alternative basis of exemption is also not satisfied.

However, subsection 118-195(1) of the ITAA 1997 confers on the Commissioner discretion to extend the two year exemption period.

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 (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 reasons outside the beneficiary or trustee's control.

The delay in disposing of the dwelling was due to the complexity of the deceased estate which delayed the completion of the administration of the estate.

In determining whether or not to grant an extension the Commissioner is also expected to consider whether and to what extent the dwelling is used to produce assessable income and how long the trustee or beneficiary held it.

Having considered the relevant facts, 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 until settlement.

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