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Edited version of your written advice
Authorisation Number: 1051283417542
Date of advice: 15 September 2017
Ruling
Subject: capital gains tax – 2 year extension
Question
Will the Commissioner exercise the discretion under subsection 118-195(1) of the Income Tax Assessment Act 1997 (ITAA 1997) and allow an extension of time until settlement date?
Answer
Yes
Having considered your circumstances and the relevant factors, the Commissioner is able to apply his discretion under subsection 118-195(1) of the ITAA 1997 and allow an extension of time until settlement date. Further information on the relevant factors and inheriting a dwelling generally can be found on our website ato.gov.au and entering Quick Code QC17195 into the search bar at the top right of the page.
This ruling applies for the following period:
30 June 2018
The scheme commences on:
1 July 2015
The deceased purchased the property prior to 20 September 1985 and used it as their main residence up until their date of death in 2013. This dwelling was not used to produce income.
The property was left to two beneficiaries in equal shares as tenants in common. You reside in Australia while the other beneficiary resides outside of Australia.
In 2014 probate was granted and at this time you wanted to sell the property. This did not occur and the property was rented out for 12 months.
Once the rental lease had expired in 2015, you attempted to put the property on the market again and it was at this point, the other beneficiary revealed did not want to relinquish their ownership interest in the property.
You attempted to communicate with the other beneficiary on numerous occasions with a view to selling the property from 2015 onwards, with no success.
Many valuations of the property also occurred during this time to demonstrate to the other beneficiary the property’s worth, to no avail. All communication was ceased by the other beneficiary with you.
In early 2017 you made another attempt to resolve the matter, whereby you instigated a “Binding Expert Determination” which caused the other beneficiary to instruct a solicitor to act on their behalf. This legal issue caused further delays in having the property sold.
The property finally went to auction in June 2017 and was sold. A further delay was caused with the settlement, due to the transfer papers not being signed by the other beneficiary, as they were overseas.
Settlement occurred in August 2017.
Further court proceedings have been commenced by the other beneficiary regarding the distribution of the sale proceeds.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 104-10
Income Tax Assessment Act 1997 section 118-190
Income Tax Assessment Act 1997 subsection 118-195(1)
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