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Edited version of private advice
Authorisation Number: 1052082544485
Date of advice: 7 February 2023
Ruling
Subject: Commissioner's discretion - deceased estate
Question
Will the Commissioner exercise the discretion under section 118-195 of the Income Tax Assessment Act 1997to allow an extension of time for you to dispose of your ownership interest in the dwelling and disregard the capital gain or capital loss you made on the disposal?
Answer
Yes.
Having considered your circumstances and the relevant factors the Commissioner will allow an extension of time. Further information about the Commissioner's discretion can be found by searching ato.gov.au for 'QC 66057'.
This ruling applies for the following period:
Year ended 30 June 202X
The scheme commences on:
1 July 202X
Relevant facts and circumstances
The Deceased passed away on XX/XX/20XX leaving a Will (the Will).
As at the date of death, the Deceased owned a property at XXX (the Property) which was her main residence.
The Deceased appointed XXX as Executors of her Will (the Executors).
Following the Deceased's passing, the Executors immediately appointed a solicitor to obtain probate however XX months later, the solicitor relinquished his appointment.
In XX/20XX, the Executors engaged a second solicitor who filed an online Probate Notice and lodged a Grant of Probate.
The Probate Notice marked the beginning of an extensive legal process due to the complexity of the Will left by the Deceased, which included Codicils and hand-written amendments. This resulted in the Court being required to reconstruct the Will.
On XX/XX/20XX, the Executors received the sealed Grant of Probate and commenced the process of engaging real estate agents to sell the Property. Settlement occurred approximately XX months later.
At all material times, the Property was not used for producing assessable income.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 102-20
Income Tax Assessment Act 1997 section 104-10
Income Tax Assessment Act 1997 section 118-195
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