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Edited version of your written advice
Authorisation Number: 1013125919778
Date of advice: 17 November 2016
Ruling
Subject: CGT - deceased estate
Question
Will the Commissioner exercise his discretion under subsection 118-195(1) of the Income Tax Assessment Act 1997 (ITAA 1997) to allow an extension of time to dispose of your ownership interest in the property acquired through a deceased estate?
Answer
Yes.
This ruling applies for the following period
Year ending 30 June 201X
The scheme commences on
1 July 201X
Relevant facts and circumstances
You are one of two beneficiary of a deceased estate.
One of the assets of the deceased estate was the deceased's main residence.
The property was acquired by the deceased after 20 September 1985 and was the deceased's main residence up until the time of their death. They were the sole owner of the property.
The property has never been used for the purpose of producing assessable income at any time during the deceased's ownership.
Probate was granted in mid-late 20XX and the property was then transferred into the beneficiaries' names on an equal basis.
You wished for the property to be sold soon thereafter, however, the other beneficiary did not wish to part with the property and approached you to buy out your ownership interest.
You accepted and it was agreed that they would fund the purchase of your share via proceeds from the sale of another property they owned, which was due to be sold in early 20XX.
The sale of this property did not proceed as planned.
The other beneficiary thought the matter could be resolved and the purchase of your share, still proceed. However, they have had to take legal action and the matter is still waiting to be heard.
These issued caused them to fall into some financial difficulty and in order to assist with this the property was rented out to a third party.
Your share of the rental income has been returned in your tax return.
The other beneficiary also tried to secure additional funding to purchase your share of the property, but was unsuccessful.
It was decided that due to the ongoing legal issues and their inability to obtain alternate funding to complete the purchase of your share. The property would need to be placed on the market and sold to a third party.
A real estate agent was engaged and they actively marketed the property for sale.
The property was contacted for sale and settlement has occurred.
Relevant legislative provisions
Income Tax Assessment Act 1997 Subsection 118-195(1)
Reasons for decision
Subsection 118-195(1) of the ITAA 1997 allows a trustee of a deceased estate to disregard a capital gain or loss from a dwelling if:
● 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).
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.
Having considered the particular circumstances of this case, 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.
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