Edited version of your private ruling

Authorisation Number: 1012488096391

Ruling

Subject: CGT - deceased estate and extension of time

Question 1

Will the Commissioner exercise discretion under subsection 118-195(1) of the Income Tax Assessment Act 1997 (ITAA 1997) and allow an extension of time to the two year period?

Answer

Yes.

This ruling applies for the following periods:

Financial year ended 30 June 2012.

The scheme commences on:

1 July 2011.

Relevant facts and circumstances

The non-resident deceased died in the relevant financial year.

The deceased left the main residence (the property), which was located overseas, to you.

In respect of this property, there was no life interest or life tenancy arrangement under the will.

The property was advertised for sale shortly after the death of the deceased until it was sold in the subsequent financial year.

The property sale settled more than two years after the deceased's death.

The property was rented for approximately six months prior to sale. This was the only period the property has ever produced assessable income from the date the property was acquired by the deceased to its disposal by you.

The sole reason the property was rented was due to your concerns for the security of the property as the property was located overseas and had been unattended to since the deceased died and had not yet been sold.

The delay in selling the property was due to the complexity of dealing with overseas authorities and legal representatives and was outside your control.

Relevant legislative provisions

Income Tax Assessment Act 1997 subsection 118-130(3).

Income Tax Assessment Act 1997 section 118-195.

Income Tax Assessment Act 1997 subsection 118-195(1).

Reasons for decision

A capital gain or capital loss is disregarded under section 118-195 of the Income Tax Assessment Act 1997 (ITAA 1997) where a CGT event happens to a dwelling if it passed to you as an individual beneficiary of a deceased estate or you owned it as the trustee of the deceased estate. The availability of the exemption is dependant upon:

· who occupied the dwelling after the date of the deceased's death, or

· whether the dwelling was disposed of within two years of the date of the deceased's death.

For a dwelling acquired by the deceased, you will be entitled to a full exemption if:

· the dwelling was, from the deceased's death until your ownership interest ends, the main residence of one or more of the following relevant individuals:

- the spouse of the deceased immediately before death (except a spouse who was living permanently separately and apart from the deceased)

- an individual who had a right to occupy the dwelling under the deceased's will, or

- an individual beneficiary to whom the ownership interest passed and that person disposed of the dwelling in their capacity as beneficiary, or

· your ownership interest ends within two years of the deceased's death.

In your case, when the deceased died, the property passed to you. The property was the deceased's main residence prior to death, and at that time, was not being used to produce assessable income. However, the property was not occupied by a relevant individual after the deceased's death and therefore this basis of exemption is not available.

Subsection 118-130(3) of the ITAA 1997 provides that where the sale or other disposal of the dwelling proceeds under a contract, the ownership interest ends at the time of settlement of the contract of sale and not at the time of entering the contract.

The property sale settled more than two years after the deceased's death, therefore, the alternative basis of exemption is also not satisfied.

However, subsection 118-195(1) of the ITAA 1997 confers on the Commissioner discretion to extend the two year exemption period, thus this alternative basis of exemption in the provision may apply.

The following is a non-exhaustive list of situations in which the Commissioner would be expected to exercise the discretion:

· the ownership of a dwelling or a will is challenged

· the complexity of a deceased estate delays the completion of administration of the estate

· a trustee or beneficiary is unable to attend to the deceased estate due to unforeseen or serious personal circumstances arising during the two year period (e.g. the taxpayer or a family member has a severe illness or injury), or

· settlement of a contract of sale over the dwelling is unexpectedly delayed or falls through for reasons outside the beneficiary or trustee's control.

The delay in disposing of the property was caused by the complexity of selling an overseas property. Delays were due to dealing with overseas authorities and legal representatives, and these delays prevented you from disposing of the property within the two year time limit, by a number of days.

In determining whether or not to grant an extension the Commissioner is also expected to consider whether and to what extent the dwelling is used to produce assessable income and how long the trustee or beneficiary held it.

In your circumstances, we consider the rental period was reasonable and that you held the property for a reasonable period of time given you exceeded the two year time limit by a few days.

Having considered the relevant facts, the Commissioner is able to apply his discretion under subsection 118-195(1) of the ITAA 1997 and allow an extension to the two year time limit.