Draft Taxation Determination
TD 1999/D44
Income tax: capital gains: in what circumstances does a trustee of a deceased estate acquire an ownership interest in a dwelling 'under the deceased's will' for the purposes of subsection 118-210(1) of the Income Tax Assessment Act 1997?
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Please note that the PDF version is the authorised version of this draft ruling.This document has been finalised by TD 1999/74.
FOI status:
Preamble
| Draft Taxation Determinations (DTDs) present the preliminary, though considered, views of the Australian Taxation Office. DTDs should not be relied on; only final Taxation Determinations represent authoritative statements by the Australian Taxation Office. |
1. In its context in subsection 118-210(1) of the Income Tax Assessment Act 1997, the preposition 'under' requires a connection between the trustee's acquisition of an ownership interest in a dwelling and the deceased's will. The connection required is not a strict one.
2. A trustee acquires an ownership interest in a dwelling under the will of a deceased person for the purposes of subsection 118-210(1) if the interest is acquired in accordance with the terms of the will, or in accordance with the terms of the will as modified by any court order.
3. The trustee also acquires an interest under the deceased's will if they acquire it in pursuance of the will or under the authority of the will (Evans v. Friedmann (1981) 53 FLR 229 at 238).
4. The acquisition need not be in strict conformity with the will or expressly by force of the will but, if it is, the requirements of subsection 118-210(1) are, in any case, satisfied.
5. If a trustee acquires an ownership interest in a dwelling in the course of the administration of an intestacy, the trustee does not acquire the interest 'under the deceased's will' for the purposes of subsection 118-210(1) because there is no will.
Your comments
We invite you to comment on this Draft Taxation Determination. We are allowing 4 weeks for comments before we finalise the Determination. If you want your comments considered, please provide them to us within this period.
| Comments by Date: | 25 August 1999 |
| Contact officer details have been removed following publication of the final ruling. | |
Commissioner of Taxation
28 July 1999
References
ATO references:
NO 99/10480-5
BO CGT main residence summit 1999
Subject References:
acquisition
capital gains
deceased
deceased estate
dwelling
interest
intestacy
ownership interest
trustee
under
will
Legislative References:
ITAA 1997 118-210(1)
Case References:
Evans v. Friedmann
(1981) 53 FLR 229