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Edited version of private advice
Authorisation Number: 1051561378033
Date of advice: 6 August 2019
Ruling
Subject: Deceased estate
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:
Year ended 30 June 20XX
The scheme commences on
1 July 20XX
Relevant facts
The deceased acquired a dwelling (the dwelling).
The deceased passed away in 20xx (the deceased).
The dwelling was the deceased's main residence.
The deceased left a will dated xx 20xx.
The will appoints the deceased's child (A) and their friend (B) as executors. Both A and B were not named as a beneficiary in the will of the deceased.
The executors registered the death of the deceased and arranged the funeral and cremation, however further administration of the estate was not completed for a number of reasons.
B spent considerable time overseas where their spouse was engaged in full time employment.
A effectively took on the role of sole executor and also advised B that they intended to challenge the will.
A did not attend to the sale of the dwelling. The dwelling was used by A whilst they visited.
A did not attend to paying any of the expenses related to the dwelling and as a result the utilities were disconnected.
The dwelling was subject to an existing mortgage which was unpaid from the date of death of the deceased.
The registered mortgage holder advised in 20xx that they would commence proceedings to take possession of the dwelling.
A contacted C to advise that they were unable to continue with the administration of the estate. A also advised that they had recently been diagnosed with a medical condition.
On xx 20xx A sent you a copy of the deceased's will. You were surprised to find that you and your sibling D were named as beneficiaries. The deceased was your step parent.
You investigated the financial affairs of the deceased and became aware that the deceased's bank accounts had been depleted.
On xx 20xx you proposed to A and B that you would take over the administration of the estate provided they renounce their roles as executors.
A and B formally renounced their role as executor
On xx 20xx you appointed a local real estate agent to manage the sale of the dwelling.
The real estate agent advised that due to the dwelling effectively being derelict for a number of years that substantial repairs were required.
You funded the repairs personally.
On xx 20xx you engaged legal representation to act for you in your application to the court to have you issued a grant of administration.
On xx 20xx you and your sibling D were granted letters of administration.
The dwelling was listed with a real estate for sale by auction.
The dwelling was sold shortly after at auction.
Settlement occurred shortly after auction.
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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