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Edited version of your written advice
Authorisation Number: 1012999704217
Date of advice: 22 April 2016
Ruling
Subject: Capital gains tax - Extension of time - Commissioner's discretion
Question:
Will the Commissioner exercise his discretion under subsection 152-80(3) of the Income Tax Assessment Act 1997 (ITAA 1997) to extend the 2 year time limit?
Answer:
Yes.
This ruling applies for the following period:
Year ending 30 June 2016
The scheme commenced on:
1 July 2015
Relevant facts
The deceased passed away in 20XX.
The deceased operated a business on a property before their death for over 15 years.
At the date of death the deceased satisfied all the basic conditions under Subdivision 152A of the ITAA 1997 to access the small business concessions in relation to the 15 year exemption.
A portion of the property was sold to a third party.
The remainder of the property remained on sale and was difficult to sell.
A new real estate agent was approached to provide an alternative marketing plan to sell the property.
The property was sold a few months after the two year period from the date of death of the deceased.
Relevant legislative provisions
Income Tax Assessment Act 1997 Section 152-80
Income Tax Assessment Act 1997 Subsection 152-80(3)
Reasons for decision
Section 152-80 of the ITAA 1997 allows either the legal personal representative of an estate or the beneficiary to apply the small business CGT concessions in respect of the sale of the deceased's asset in certain circumstances.
Specifically, the following conditions must be met:
• the asset devolves to the legal personal representative, passes to a beneficiary or is acquired by a surviving joint tenant
• the deceased would have been able to apply the small business concessions themselves if they had disposed of the asset immediately prior to their death, and
• a CGT event happens within 2 years of the deceased's death unless the Commissioner extends the time period in accordance with subsection 152-80(3) of the ITAA 1997.
In determining whether the discretion to allow further time should be exercised, the Commissioner considered the following factors:
• evidence of an acceptable explanation for the period of the extension requested (and whether it would be fair and equitable in the circumstances to provide such an extension)
• prejudice to the Commissioner which may result from the additional time being allowed (but the mere absence of prejudice is not enough to justify the granting of an extension)
• unsettling of people, other than the Commissioner, or of established practices
• fairness to people in like positions and the wider public interest
• whether any mischief is involved, and
• consequences of the decision.
In this case, we consider that you have provided a reasonable explanation for the delay in the disposal of the CGT asset. Considering the timeframe involved, we do not consider allowing this request would cause the unsettling of others.
Accordingly, the Commissioner will exercise his discretion under subsection 152-80(3) of the ITAA 1997 to extend the time period.
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