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This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law.

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Edited version of your written advice

Authorisation Number: 1013007236107

Date of advice: 6 May 2016

Ruling

Subject: Capital Gains Tax-small business concessions- deceased estate - extension of time

Question:

Will the Commissioner exercise his discretion under subsection 152-80(3) of the Income Tax Assessment Act 1997 (ITAA 1997) to extend the two year time limit?

Answer:

Yes

This ruling applies for the following period:

Year ended 30 June 2015

The scheme commenced on:

1 July 2014

Relevant facts

The deceased passed away a few years ago.

You and a family member are beneficiaries of the estate of the deceased.

The deceased inherited land.

The deceased used the land to carry on a primary production business.

At the date of death the deceased satisfied all the conditions under Subdivision 152A of the ITAA 1997 to access the small business concessions in relation to the 15 year exemption.

There were various issues that delayed the sale of the land including difficulty in obtaining an accurate valuation of the land and illness suffered by one of the beneficiaries.

The land was sold approximately three years after the deceased passed away.

A capital gain was made on the sale of the property.

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:

In determining whether the discretion to allow further time should be exercised, the Commissioner considers the following factors:

In this case, we consider that you have provided a reasonable explanation for the delay in the disposal of the CGT asset. 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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