Edited version of private advice

Authorisation Number: 1052346066464

Date of advice: 20 December 2024

Ruling

Subject: CGT - deceased estate

Question

Will the Commissioner exercise his discretion and allow an extension of time to the two-year period for the property?

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:

Income year ending 30 June 20XX

The scheme commenced on:

XX XXXX 20XX

Relevant facts and circumstances

On XX XXXX 20XX, the deceased passed away. You have provided a copy of his Death Certificate, dated XX XXXX 20XX.

The deceased was predeceased by their spouse. They had no children.

The deceased's estate included their main residence, the property. It was acquired on XX XXXX 20XX. The property remained vacant from the deceased's death until its sale.

The deceased left a will (the Will), dated XX XXXX 20XX, appointing Joint Executors executor A and executor B to manage the estate. A copy of the will has been provided.

The deceased was a hoarder, which led to delays in the estate administration. It took approximately several months to sort through the deceased's paperwork, documents and personal belongings. A lengthy clean-up process was required to dispose of unnecessary items.

Enquiries were required with the bank to determine whether a Safe Custody Packet existed for the deceased's valuables or important documents. Furthermore, ongoing correspondence was maintained with the deceased's accountant to resolve outstanding financial matters, and to ascertain if there were any contingent liabilities.

On XX XXXX 20XX, one of the Joint Executors, executor B, was diagnosed with XXXXX and passed away. This necessitated a delay in having to wait to receive the executor B's Death Certificate to enable progress in dealing with the Estate.

Executor B died before probate of the Will was granted.

The Will and other relevant documentation were in the possession of the deceased's solicitors throughout this period. That solicitor was reluctant to release the relevant files and took delaying tactics which further delayed the proper administration of the Estate.

On XX XXXX 20XX, the solicitor released the Will to the executor A.

Following lodgement of the Application of a Grant of Probate, requisitions were received as the Death Certificate referred to executor B by one name and the Will refers to this executor by another name. The Supreme Court's Registrar requested that documentary evidence be provided in support of the fact that the two are one and the same person. This required an Affidavit from the solicitor mentioned to support this.

On XX XXXX 20XX, Probate of the Will was granted by the Supreme Court. A copy of the Grant of Probate has been provided.

The solicitor handling the sale of the property caused further delay by being absent overseas on personal matters and did not return until XX XXXX 20XX.

Executor B, as soon as they were able to do so, sought out a suitable real estate agent to sell the property and to negotiate a Sales Agency Agreement. In the meantime arrangements were put in place to prepare the property for sale, i.e. cleaning the property, arrange for the lawns to be cut, and the garden and landscaped areas to be tended to.

A real estate agent was appointed as the selling agent and he recommended a four-week Marketing Campaign.

On XX XXXX 20XX the property was sold at public auction.

XX XXXX 20XX, settlement occurred, X months after the deceased's death.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 118-195

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