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Edited version of private advice
Authorisation Number: 1052398630536
Date of advice: 27 May 2025
Ruling
Subject: CGT - 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 ruling applies for the following period:
DD MM YY
The scheme commenced on:
DD MM YY
Relevant facts and circumstances
On DD MM YY, the deceased acquired the property at XXXX (the property).
The deceased's will (dated On DD MM YY) appointed Person A and Person B, as executors of the will.
The deceased died on DD MM YY.
The property was the deceased's main residence at date of death and was not used to produce income.
The property contains a dwelling and is less than 2 hectares in size.
On about DD MM YY, Solicitor A provided a certified copy of the deceased's will to the executor, Person A. Solicitor A subsequently told Person A they couldn't find the deceased's will. They also told Person A that the deceased had never been their client.
On DD MM YY, Person A contacted Solicitor B for assistance in managing the estate after Solicitor A advised they could not locate the will.
On DD MM YY, Solicitor B contacted Solicitor A to pursue the lost will. Solicitor A did a further search and located the will.
On DD MM YY, Solicitor B (on the instructions of the executors) provided authority for release of the original will from Solicitor A to Solicitor B.
On DD MM YY, executor Person B was hospitalised due to a medical condition.
On DD MM YY, the executors lodged an application for probate with the Court.
On DD MM YY, probate was granted to the executors.
On DD MM YY, the executors engaged the real estate agent to sell the property.
On DD MM YY, the real estate agent listed the property for sale.
On DD MM YY and on DD MM YY, the real estate agent reduced the property sale price.
On DD MM YY, the executors received an offer to purchase the property.
On DD MM YY, the executors entered a contract to sell the property, subject to conditions in favour of the purchaser.
On DD MM YY, the purchaser advised they were unable to satisfy the conditions and terminated the contract.
On DD MM YY, the executors entered a second contract to sell the property, subject to conditions in favour of the purchaser.
On DD MM YY, the purchaser advised they were unable to satisfy the conditions in the contract and terminated the contract.
On DD MM YY, the executors entered a third contract to sell the property with no conditions.
On DD MM YY, the sale of property settled.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195
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