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Edited version of private advice
Authorisation Number: 1051836836560
Date of advice: 11 May 2021
Ruling
Subject: CGT - deceased estate
Question
Will the Commissioner allow an extension of time to XXXX 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 ending 30 June 20XX
The scheme commences on:
1 July 20XX
Relevant facts and circumstances
The deceased acquired a property that was used as a holiday home.
The deceased allowed a non-family member (the occupant) to reside at the property. The occupant did not pay rent but did pay for the utilities. The occupant refused to vacate the property despite being asked to do so on numerous occasions and eventually stopped paying for the utilities.
The deceased passed away.
The executors engaged solicitors in XXXX to assist with administering the estate. Probate was granted on XXXX. The title of the property was transferred to the executors on XXXX.
During the period awaiting probate to be granted and transfer of the title it was difficult for the executors to take any formal steps on behalf of the estate until they had been formally recognised as the executors and registered on the title as owners of the property.
Over a two year period various exchanges of correspondence occurred between the executor's solicitor and the occupant's solicitor in relation to the occupant vacating the property. Several attempts were made to vacate the occupant from the property by issuing formal notices and having representatives attend the property to remove the occupant, however, these attempts were unsuccessful.
Whilst these matters were continuing one of the executors passed away.
The occupant did pay rent for a period of time whilst residing in the property during the executor's ownership period.
An application for a warrant for possession was filed on XXXX. After numerous appeals and submissions were made the matter was finalised on XXXX where the a final decision was handed down granting possession and ordering the occupant to vacate.
The occupant vacated the property.
The property required repair works to be carried out before placing it on the market. The property was placed on the market on XXXX and was sold and settled on XXXX.
Relevant legislative provisions
Income Tax Assessment Act 1997 subsection 118-195(1)
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