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Edited version of private advice
Authorisation Number: 1052120363126
Date of advice: 19 May 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 1997 to allow an extension of time for the Administrator to dispose of the ownership interest in the dwelling owned as trustee of the deceased estate and disregard the capital gain or capital loss 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 20XX
The scheme commenced on:
1 July 20XX
Relevant facts and circumstances
The deceased was the sole registered owner of a dwelling at the date of their death.
Since the deceased's death there has been ongoing litigation in relation to the estate including the validity of the last will.
The Court issued a court order which declared, inter alia, the wills were invalid, letters of administration with the will to be granted to an administrator and pursuant to a section of the Act, the administrator be registered as the proprietor of any real property of the deceased.
Until the Administrator was appointed in accordance with the court order, there was no person authorised to act on behalf of the estate.
A contract for the sale of the dwelling was entered into by the Administrator with settlement occurring.
Details regarding the dwelling are as follows:
a. The deceased acquired the dwelling after 1985.
b. The dwelling was the deceased's main residence just before the deceased's death and was not then being used for the purpose of producing assessable income.
c. Since the deceased's death the dwelling has been occupied by the deceased's child/ren or rented to third parties.
d. The dwelling is situated on less than two hectares of land.
Relevant legislative provisions
Income Tax Assessment Act 1997 Section 118-195
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