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Edited version of private advice
Authorisation Number: 1052390370228
Date of advice: 29 May 2025
Ruling
Subject: Commissioner's discretion - deceased estate
Question 1
Will the Commissioner exercise the discretion under section 118-195 of the Income Tax Assessment Act 1997 (ITAA 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 1
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 private ruling applies for the following period
Year ending 30 June 20XX
The scheme commenced on:
1 July 20XX
Relevant facts
The deceased passed away on XX XX 20XX.
As at the date of death, the deceased owned a dwelling. (The dwelling).
The dwelling was the main residence of the deceased and was never used to produce assessable income.
The land size is less than 2 hectares.
Probate was granted on XX XX 20XX to the deceased's child. (Person A).
The deceased had operated a small company which required the executor to be actively involved in winding up and appointing liquidators.
The dwelling was occupied by the deceased's child. (Person B).
Person B resided in the dwelling for approximately X years prior to the passing of the deceased.
Person B experienced increasing issues with an injury less than a month after the grant of probate. Person B sought medical advice from their general practitioner and received a referral to see a surgeon in late 20XX. Person B underwent surgery on XX XX 20XX. Person B had recovered by the end of 20XX.
Person B started looking for alternative accommodation at the start of 20XX and found that not only the houses and locations were not suitable, but they weren't financially ready to make a purchase.
Person B applied for several rental properties over the period of X to Y 20XX without success.
Person B applied for a property in XX 20XX. The owner was satisfied with the application but couldn't approve it until they received payment of the bond plus X months' rent. Person B paid the funds and moved into the property on XX XX 20XX.
On XX XX 20XX, the executor contacted a real estate agent.
On XX XX 20XX, the executor sold the dwelling.
Settlement occurred on XX XX 20XX.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195
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