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Edited version of your written advice
Authorisation Number: 1051232791008
Date of advice: 6 June 2017
Ruling
Subject: Decease Estate exemption for Capital Gains Tax
Question 1
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 Property was owned solely and was the primary place of residence from date of purchase in 1955.
Late 2011 a person moved into a nursing home with their partner.
The Property was rented however it was elected for the property to continue to remain the main residence.
A person passed away
The Property title was transferred to a trustee for the estate.
The partner was the sole beneficiary of the estate.
The partner was suffering from acute dementia and continued to request to go back to their home that they had lived in.
Following the death, the Trustee was notified that their parent was in palliative care and not expected to live beyond the balance of the year.
The trustee went through her own divorce proceedings resulting in her eventual divorce.
The trustee spent the majority of their free time with their parent including taking time off work to make surprise visits to the nursing home. There were incidents of poor care that at times required police involvement.
The partner passed away.
The vacant property was placed on the market for sale.
The property sold.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 104-10
Income Tax Assessment Act 1997 subsection 118-130(3)
Income Tax Assessment Act 1997 section 118-195
Income Tax Assessment Act 1997 subsection 118-195(1)
Reasons for decision
Summary
The Commissioner will exercise his discretion under subsection 118-195(1) of the Income Tax Assessment Act 1997 (ITAA 1997) and allow an extension of time.
Detailed reasoning
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 have an ownership interest in a property if you have a legal interest in the property. This means that if you sell a property, your ownership interest continues until the date of settlement (rather than the date the contract of sale is signed).
In this case, the property was purchased by the deceased before 20 September 1985 and was their main residence until they passed away. The property was not sold within 2 years of the deceased’s date of death.
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
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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