1013092214948 | Legal database

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Edited version of your written advice

Authorisation Number: 1013092214948

Date of advice: 11 October 2016

Ruling

Subject: Deceased estate

Question

Will the Commissioner exercise his discretion under subsection 118-195(1) of the Income Tax Assessment Act 1997 ('ITAA 1997') in relation to the property and allow an extension of time?

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 passed away in 20WW.

The deceased's main residence ('the property') formed part of the deceased's estate. The estate passed to the sole beneficiary.

The beneficiary lived in the property until 20XX, at which time it was used to earn assessable income.

When the beneficiary and their spouse separated in 20XX, the property ownership became contested in the separation proceedings heard in the Family Court. The case was finalised in early 20ZZ.

The property sale settled in 20ZZ.

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 your capacity as trustee of a deceased estate (or it passed to you as a beneficiary of an 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, or

• the property was acquired by the deceased on or after 20 September 1985 and the dwelling 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, and

• your ownership interest ends within 2 years of the deceased's death (the Commissioner has discretion to extend this period in certain circumstances).

You will only be able to disregard the capital gain from the sale of the property if the Commissioner extends the 2 year time period. 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 and your spouse separated in 20XX. The property ownership became contested in the separation proceedings heard in the Family Court. The case was finalised in early 20ZZ, and the property sale concluded several months later.

Having considered the circumstances and the factors outlined above, the Commissioner is able to apply his discretion under subsection 118-195(1) of the ITAA 1997 and allow an extension of time.

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