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Edited version of private advice
Authorisation Number: 1052111794777
Date of advice: 2 May 2023
Ruling
Subject: Commissioner's discretion - deceased estate
Question
Will the Commissioner exercise the discretion in subsection 152-80(3) of the Income Tax Assessment Act 1997 (ITAA 1997) to extend the time limit to allow the estate to apply the small business capital gains tax concessions to the disposal of the Property?
Answer
Yes. Having considered your circumstances and the relevant factors, including the finalisation of the legal proceedings of the disputes impeding administration of the estate, and delays caused by a natural disaster, the Commissioner will exercise the discretion in subsection 152-80(3) of the ITAA 1997 and extend the time limit to dispose of the Property.
This ruling applies for the following periods:
Year ending 30 June 20XX
Year ending 30 June 20XX
The scheme commenced on:
1 July 20XX
Relevant facts and circumstances
The deceased owned the Property.
The deceased passed away and the Property formed part of their estate.
The estate was subject to initial legal proceedings that were resolved in accordance with a deed of family arrangement (Deed).
The Deed provides for the Property to be sold in order to administer the estate in accordance with the deceased's Will and in accordance with the orders from the initial proceedings.
A further dispute arose between the executors regarding the administration of the estate resulting in additional proceedings.
A related dispute also arose between the deceased's children which is still ongoing.
An in principle agreement had been reached through mediation, although there were delays in finalising the matter due to extenuating circumstances including a natural disaster and further legal and taxation complexities.
Court proceedings involving the sale of the Property and the partnership dispute are listed for a directions hearing.
The Estate will dispose of the Property as soon as the court proceedings over the disputes are finalised.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 152-80(3)
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