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Edited version of private advice
Authorisation Number: 1051557212693
Date of advice: 31 July 2019
Ruling
Subject: The Commissioner's discretion to extend the two year time limit to dispose of a dwelling
Question
Will the Commissioner allow an extension of time for you to dispose of your ownership interest in the dwelling and disregard the capital gain you make on the disposal?
Answer
Yes.
Having considered your circumstances and the relevant factors, the Commissioner will allow an extension of time. Further information about this discretion can be found by searching 'QC 52250' on ato.gov.au
This ruling applies for the following period(s)
Year ended 30 June 2019.
The scheme commences on
1 July 2018.
Relevant facts
The deceased acquired a dwelling prior to 20 September 1985 (the dwelling).
The deceased passed away in 20xx (the deceased).
The dwelling was the deceased's main residence.
The deceased suffered a medical condition from the death of their parent in 19xx and required hospitalisation. Following the deceased's discharge from hospital they resided in a residential care facility.
The deceased did not return to live in the dwelling and it was occupied from time to time by family members.
The deceased's affairs were administered by an organisation pursuant to an order in 19xx.
The deceased was survived by a number of family members.
Legal advice was obtained around 20xx by 'A' and 'B' (the applicants) who are relatives of the deceased as they believed that the deceased died intestate.
The applicants were in a close relationship with the deceased and were prepared to be involved in the administration of the estate.
The legal representative was able to determine that the organisation was in possession of a document purporting to be the last will and testament of the deceased and further documents purporting to be codicils to the will.
A dispute arose in relation to the validity of the will and the codicils.
Delays were experienced in obtaining the relevant personal information from the organisation.
Legal proceedings were commenced in 20xx.
The legal proceedings were heard in 20xx.
The Court delivered judgment in 20xx.
The Court held that the original will was valid and the codicils were invalid.
The applicants were granted the right to apply for letters of administration with the will annexed.
The letters of administration with the will annexed was granted in 20xx.
The dwelling was listed with a real estate for sale by auction.
The dwelling sold at auction in 20xx.
Settlement occurred shortly after in 20xx.
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
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