1013031229092 | Legal database

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This edited version has been archived due to the length of time since original publication.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: 1013031229092

Date of advice: 8 June 2016

Ruling

Subject: Requesting an extension of time to dispose of an asset

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 2017

The scheme commences on:

1 July 2016

Relevant facts and circumstances

The deceased passed away.

The deceased purchased the property in 199X, it was their main residence.

The deceased moved into a nursing home in 201X and the property was rented out to help cover the costs of the nursing home.

Probate for the estate was received in 201X.

You are requesting an extension of time to allow the property to settle.

Relevant legislative provisions

Income Tax Assessment Act 1997 Section 118-195.

Reasons for decision

Subsection 118-195(1) of the ITAA 1997 states that if you are an individual who owns 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 on or after 20 September 1985 and the property 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; or the property was acquired by the deceased before 20 September 1985; and

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

In your case, the property will not be sold within the two year time limit. Therefore, you will only be able to disregard the capital gain from the sale of the property if the Commissioner grants an extension to the two year time limit.

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

In your case, the delay in the disposal of the property was due to the delay in receiving probate.

Having considered the relevant facts, the Commissioner is able to apply his discretion under subsection 118-195(1) of the ITAA 1997 and allow an extension to the two year time limit if the property is sold by X.

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