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Edited version of private advice
Authorisation Number: 1052413427011
Date of advice: 07 July 2025
Ruling
Subject: CGT - deceased estate
Question 1
Will the Commissioner exercise the discretion to allow an extension of time for you to dispose of your ownership interest in the property 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:
Income year ending 30 June 20XX
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.
On XX XXXX 20XX, probate of the deceased's will (the Will) was granted to the executors.
The deceased had children who are the residuary beneficiaries named in the Will.
At the time the deceased died, some beneficiaries were living in the property.
On XX XXXX 20XX, the deceased acquired their original ownership interest in the property with their spouse.
On XX XXXX 20XX, the deceased acquired their full ownership interest in the property as the surviving joint tenant.
The property size is less than 2 hectares, and it was not used to produce income just before the deceased's death.
On XX XXXX 20XX, beneficiary A died, leaving a will dated XX XXXX 20XX (beneficiary A's Will).
Beneficiary B brought proceedings against the named executor of the beneficiary A's Will.
On XX XXXX 20XX, beneficiary B filed Proceedings in the Court. The Proceedings contested beneficiary A's Will based on undue influence and beneficiary A's incapacity to make a will.
During the Proceedings, beneficiary B continued to reside in the property. Due to personal and financial circumstances during this time, beneficiary B was unable to relocate permanently to their own residence.
As the terms of beneficiary A's Will were in dispute and beneficiary A's estate was a beneficiary of the deceased's estate, the sale of the property was placed on hold.
On XX XXXX 20XX, the Proceedings concluded when the parties entered into the Settlement in relation to beneficiary A's Will. The Settlement reached agreement as to the division of the deceased's estate between the beneficiaries.
In XXXX 20XX, beneficiary B vacated the property having been given notice to do so following conclusion of the Proceedings.
Immediately following beneficiary B vacating the property, the executors engaged someone to prepare the property for sale and someone to place the property on the market. There was a delay in preparing the property for sale due to the changes in the ownership of the proposed selling agent.
On or about XX XXXX 20XX, the property was placed on the market.
On XX XXXX 20XX, the property was sold by the executors of the deceased's estate at public auction for $X.
Settlement of the sale of the property is scheduled for XX XXXX 20XX and it will settle by XX XXXX 20XX
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195
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