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Edited version of private advice
Authorisation Number: 1052212879102
Date of advice: 19 January 2024
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 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 20XX
The scheme commenced on:
XX XXXX XXXX
Relevant facts and circumstances
The deceased acquired the property and lived in the property as their main residence up until the date they passed away. The property was not used to produce income.
The deceased passed away.
The legal representative filed an application for a grant of probate.
The executors were granted probate and were recorded on the land title register as proprietors of the property.
An executor disputed an estate debt with the bank. They paid the debt and requested the bank to discharge the mortgage.
The bank discharged the mortgage and the executors received clear title.
The executors did not sell the property initially as a beneficiary wished to continue residing within the property. The beneficiary lived at the property all his life as his primary place of residence.
The executors chose not to sell the property until agreement was met with the beneficiary to leave the property.
The state government announces restrictions which impeded the executor's ability to engage real estate agent services.
An executor was a support carer for a family member which due to COVID-19 posed a health risk if they were to travel.
The beneficiary moved out of the property. An executor allowed the beneficiary to reside in their rental property which resulted with an agreement to sell the property.
An auction resulted in a contract of sale signed, with settlement occurring.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195
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