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Edited version of private advice
Authorisation Number: 1052393340948
Date of advice: 8 May 2025
Ruling
Subject: Commissioner's discretion - deceased estate
Question
Will the Commissioner exercise the discretion under section 118-195 of 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
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:
15 January 2020
Relevant facts and circumstances
The deceased passed away on XX X 20XX.
The deceased owned a property (the property).
The deceased acquired the property on XX X 19XX.
The property is less than 2 hectares.
The property was the main residence of the deceased just before they passed away.
The property has never been used to produce assessable income.
The property remained unoccupied from the date of death until it was sold.
A signed Will appointed the Executor of the estate.
The Will did not have an attestation clause.
The Supreme Court issued a Notice of Requestion of Evidence on XX X 20XX.
You have provided a copy of the Notice of Requestion of Evidence.
The Supreme Court required evidence of affidavit that proved section 8 of the Wills Act 1970 was complied with.
One of the witnesses was deceased.
The other witness requested the Affidavit be presented to them by a Lawyer.
You asked for the Grant of Probate be issued in more than one form of name used by the deceased.
The deceased had informally adopted a name which did not match the name on their Birth Certificate.
The formal name of the deceased had to be clarified.
You were required to confirm the deceased's identity by Affidavit.
The Application for Probate was lodged on XX X 20XX.
Probate was granted to the executor under the will, on XX X 20XX.
The property was listed for sale.
The contract of sale was entered into.
The property settled.
You suffered serious and ongoing adverse health events that impaired your ability to oversee the timely lodgement of Probate and sale of the dwelling.
Your Disability Support Pension commenced in X 20XX.
You have listed a substantial number of medical and hospital appointments from 20XX to 20XX.
You attended XX medical/ hospital appointments in 20XX.
You attended XX medical/hospital appointments in 20XX.
You attended XX medical/ hospital appointments in 20XX.
You have provided documentary evidence, such as medical specialists letters and reports to support the medical/ hospital appointments.
Relevant legislative provisions
Income Tax Assessment Act 1997 (ITAA 1997) section 118-195
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