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Edited version of your written advice
Authorisation Number: 1051291012371
Date of advice: 5 October 2017
Ruling
Subject: Deceased estate and the capital gains tax (CGT) main residence exemption
Question
Will the Commissioner exercise the discretion in section 118-195 of the Income Tax Assessment Act 1997 (ITAA 1997) and extend the main residence exemption to 20XX?
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 20XX. Further information on the relevant factors and inheriting a dwelling generally can be found on our website ato.gov.au and entering Quick Code QC52250 into the search bar at the top right of the page.
This ruling applies for the following period:
Year ending 30 June 20XX
The scheme commences on:
1 July 20XX
Relevant facts and circumstances
The deceased passed on 20XX.
The deceased owned a property that was purchased after 19 September 1985 and was their main residence up until the date that they passed.
Probate of the will was granted to two of the executors (Executor A and Executor B) on 20XX.
Executor B immediately moved into the property with their spouse and refused to leave.
A child of the deceased was his/her sole carer for many years before the deceased passed. The child brought a family provision claim in the Relevant Court against Executor A and Executor B.
The parties signed a deed of settlement on 20XX, which was made into an order of the Relevant Court on 20XX and the family provision claim was dismissed.
In separate proceedings between Executor A and Executor B, the Relevant Court ordered on 20XX that the prior grant of probate be revoked. The orders also appointed a solicitor as the independent solicitor executor (Solicitor Executor) of the estate and that all assets of the estate to be returned to it.
Executor B was ordered to deliver up vacant possession of the property forthwith.
A contract for sale for the property was entered into between the Solicitor Executor and a third party on 20XX, which settled on 20XX.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195.
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