Edited version of your private ruling

Authorisation Number: 1011935394881

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Ruling

Subject: Capital gains tax - deceased estate and disposal of property

Question: Is the capital gain or capital loss made on the disposal of the deceased's dwelling included in your assessable income?

Answer: No.

This ruling applies for the following period

30 June 2012

The scheme commenced on

1 July 2011

Relevant facts and circumstances

This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling.

You, your parent and grandparent resided at a property (the property).

The property was owned by your grandparent.

The property was the main residence of you, your parent and grandparent.

In 1980s you moved out and purchased your own home.

During the 1990s your grandparent died (the deceased).

You and your parent are the executors of the deceased's Will.

You are not a beneficiary under the deceased's Will.

Under the deceased's Will your parent has a life interest in the property.

In 200x the property was transferred into the executors' names.

In the recent year you and your parent in your role as the executors of the deceased estate commenced provisional steps to list the property for sale.

It was at this time that it was discovered that the property was registered in you and your parent's name as joint owners.

You and your parent commissioned a legal service to undertake a title and instrument search to further investigate why your name was listed on the title.

The legal service has advised you and your parent that the title is actually registered in you and your parent's names as the executors of the deceased.

The executors will dispose of the property and disperse the proceeds as per the deceased's Will.

You have provided copies of the following documentation to support your application and these documents are to be read with and forms part of the scheme for the purpose of this ruling:

· the deceased's Will

· Certificate of Title

· Solicitors certificate as to the title, and

· correspondence from the legal service and attachments.

Relevant legislative provisions

Income Tax Assessment Act 1997 Section 104-10

Income Tax Assessment Act 1997 Section 128-15

Reasons for decision

You make a capital gain or capital loss if a capital gains tax (CGT) event happens to a CGT asset you own. The most common CGT event happens (CGT event A1) when you dispose of a CGT asset to someone else - for example, the disposal of a property.

In your case, you have two separate entities or roles, one as an executor of the deceased estate and the other role is you as an individual.

In your role as an executor you have an ownership interest in the property as the title of the property is registered to you and your mother as the executors of the deceased estate. Therefore, upon disposal of the property the estate of the deceased will be liable for the capital loss or capital gain made.

In your role as an individual you have no ownership interest in the property. Therefore, upon disposal the property you will not be liable for any capital gain or capital loss made on the disposal of the property.