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Edited version of private advice
Authorisation Number: 1052177255873
Date of advice: 18 October 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 you to dispose of your ownership interest in the dwelling and disregard thecapital 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 20XX
The scheme commenced on:
XX XX 20XX
Relevant facts and circumstances
The deceased passed away on XX XX 20XX.
At date of death, the deceased owned a property. The property was the deceased's main residence, and they lived there with their spouse since acquisition.
The property is situated on less than 2 hectares of land.
The property was a pre-CGT asset, which was inherited and registered in 19XX by the deceased.
In their Will dated XX XX 20XX, the deceased left everything to their spouse.
As the spouse was under a financial management order with a State Trustee, they could not apply for probate.
Later the State Trustee was granted Letters of Administration.
A court case was initiated against another person who was also residing at the property who would not vacate the property.
A court judgement granted the spouse the right to reside at the property and the other person a right to reside while the spouse resided there.
The spouse passed away and the other person vacated the property.
The property was place on the market and the sale of the property settled on XX XX 20XX.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195
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