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Edited version of private advice
Authorisation Number: 1052090628192
Date of advice: 23 February 2023
Ruling
Subject: Deceased estates - 2 year discretion
Question
Will the Commissioner exercise the discretion under section 118-195 of ITAA 1997 to 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:
Period ending 30 June 20YY
The scheme commenced on:
XX December 20YY
Relevant facts and circumstances
The deceased passed away between XX July 20YY and XX July 20YY.
The dwelling is located at a Place (the property).
The deceased acquired the property after 20 September 1985.
The property was the main residence of the deceased just before they passed away and was not used to produce assessable income at that time.
The property was situated on less than two hectares of land.
Probate was granted on XX October 20YY.
One person is the sole Beneficiary and Executor of the Estate. They are a citizen and tax resident of Country A.
Due to covid lockdowns and travel restrictions between Australia and Country A, the Executor was unable to travel to Australia to administer the sale of the property. The reason they needed to be present in Australia was to retrieve their own personal items that they had sent from Country A as well as those of the deceased. It had been their intention to move to Australia to live with the deceased in the property.
The Executor has no family in Australia to assist her, nor does the deceased.
The Executor travelled to Australia as soon as they could after covid restrictions lifted and they could coordinate a period of three months absence from their employer in Country A. The maximum they are entitled to is 3 weeks at a time.
The Executor arrived in Australia in September 20YY. The property was listed for sale soon after they arrived.
The Executor entered into a contract to sell the property on XX November 20YY with settlement occurring on XX December 20YY.
Relevant legislative provisions
Income Tax Assessment Act 1997 subsection 118-195
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