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This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law.

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Edited version of your written advice

Authorisation Number: 1051406673764

Date of advice: 26 July 2018

Ruling

Subject: Capital gains tax – deceased estate – two year discretion

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 until XXMM 2017?

Answer:

Yes.

This ruling applies for the following periods

Year ended 30 June 2018

The scheme commenced on

1 July 2017

Relevant facts and circumstances

The deceased passed away and two of the deceased’s children were executors of the estate.

The property in question was to be sold and split three ways.

One of the executors passed away which delayed the administration of the deceased estate.

A contract for sale was signed one month outside the two year period.

The property settled within three months of the two year period.

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 following is a non-exhaustive list of situations in which the Commissioner would be expected to exercise the discretion:

Having considered the particular circumstances of your circumstances, 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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