Edited version of private advice

Authorisation Number: 1052503108263

Date of advice: 11 February 2026

Ruling

Subject: CGT - small business concessions

Question 1

Will the Commissioner exercise the discretion in subsection 152-80(3) of the Income Tax Assessment Act 1997 (ITAA 1997) to extend the time limit in paragraph 152-80(1)(d) of the ITAA 1997 to 30 June 20XX?

Answer 1

No.

This ruling applies for the following period:

Year ended 30 June 20XX

The scheme commenced on:

1 July 20XX

Relevant facts and circumstances

The deceased and their spouse acquired the Property in 19XX.

The deceased's spouse transferred their share in the Property to the deceased pursuant to a family law order in 19XX.

The deceased died in 20XX.

The deceased's Will was contested resulting in a delay in probate which was not granted until June 20XX.

The named beneficiaries inherited the Property as tenants in common as part of the deceased's estate.

The Property transfer date to the beneficiaries was recorded with the Land Registry in February 20XX.

From March 20XX restrictions significantly impacted the ability to sell or market the property.

Between February 20XX and March 20XX the named beneficiaries did not engage any real estate agent or other professionals to sell or market the Property.

During this time one of the beneficiaries continued to operate the activity to maintain its commercial use, cover operating costs and preserve the value of the asset. This was to ensure the Property remained viable and stable and to prevent deterioration of the land and infrastructure.

The Property was listed for sale in March 20XX and a contract was entered into in June 20XX.

Relevant legislative provisions

Income Tax Assessment Act 1997 subsection 152-80(3)

Reasons for decision

Subsection 152-80(1) of the ITAA 1997 applies when:

(a)           a CGT asset:

(i)             forms part of the estate of a deceased individual, or

(ii)            was owned by joint tenants and one of them dies; and

(b)           any of the following applies:

(i)             the asset devolves to the individuals' legal personal representative

(ii)            the asset passes to a beneficiary of the individual

(iii)           an interest in the asset is acquired by the surviving joint tenant or tenants, or

(iv)          the asset devolves to a trustee of a trust established by the will of the individual, and

(c)            the deceased individual referred to in paragraph (a)(i) or (ii) would have been entitled to reduce or disregard a capital gain under Division 152 of the ITAA 1997 if a CGT event had happened in relation to the CGT asset immediately before his or her death, and

(d)           a CGT event happens in relation to the CGT asset within 2 years of the individual's death

The Commissioner may extend the time limit in paragraph 152-80(1)(d) of the ITAA 1997 (subsection 152-80(3) of the ITAA 1997).

In determining whether the discretion to extend the time limit would be exercised the Commissioner considers the following factors:

•                whether there is evidence of an acceptable explanation for the period of extension requested and whether it would be fair and equitable in the circumstances to provide such and extension

•                whether there is any prejudice to the Commissioner if the additional time is allowed (however, the mere absence of prejudice is not enough to justify the granting of an extension)

•                whether there is any unsettling of people, other than the Commissioner, or of established practices

•                the need to ensure fairness to people in like positions and the wider public interest

•                whether there is any mischief involved, and

•                the consequences of the decision.

Application to your circumstances

It is accepted that the challenge against the deceased's will, and the subsequent delay in obtaining probate, were outside your control and contributed to the delay in disposing of the Property. It is also acknowledged that

restrictions impacted the ability to sell or market the Property. However, the Property was transferred to the beneficiaries in February 20XX and was not listed for sale until March 20XX and there is no evidence of an acceptable explanation for this delay in disposing of the Property.

As the delay was not due to factors outside your control the Commissioner will not exercise the discretion in subsection 152-80(3) of the ITAA 1997 to extend the 2-year time limit to dispose of the Property.

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