Edited version of your private ruling

Authorisation Number: 1012587311566

Ruling

Subject: Capital gains tax - deceased estate - Commissioner's discretion

Question:

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

Answer:

Yes.

This ruling applies for the following period

Year ended 30 June 2014

The scheme commences on

1 July 2013

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.

Deceased A and deceased B jointly purchased a property prior to 20 September 1985.

Deceased A and deceased B established the property as their main residence.

Deceased B died more than six years ago.

Deceased A suffered from a disease which necessitated them going into a nursing home more than six years ago.

Deceased A passed away more than two years ago.

The property remained vacant until it was disposed of last year.

Prior to deceased A passing away proceedings were commenced in the Supreme Court of an Australian state (Supreme Court). Deceased A was the plaintiff in the matter by their tutor (their child A). The defendant was deceased A's child B. The executors of the estate of deceased A as named in their will were their children child A and child B.

After deceased A's passing, the Supreme Court proceeding continued on behalf of deceased A's estate by child A as the representative of their estate.

As a result of the Supreme Court proceedings and the dispute involving deceased A's estate and child B (defendant and one of the executors), the executors of deceased A's estate were unable to apply for a Grant of Probate.

The Supreme Court proceedings were resolved and settled by consent with orders having been made in 20XX.

Child B renounced their role as an executor in 20XX. The orders made by the Supreme Court were complied with by child B about a month later.

Application for probate was made to the Supreme Court as soon as possible after finalisation of the Supreme Court proceedings in 20XX.

Probate was granted late 20XX.

The property was transferred to the remaining executor child A late 20XX,

The property was disposed of with settlement taking place approximately a month later.

You have provided the following documentation to support your application and this documentation is to be read with and forms part of your application for the purpose of this ruling:

· copy of the Grant of Probate

· copy of deceased A's will, and

· Inventory of Property - deceased A.

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

While these reasons are not part of the private ruling, we provide them to help you to understand how we reached our decision.

A capital gain or capital loss is disregarded under section 118-195 of the Income Tax Assessment Act 1997 (ITAA 1997) where a capital gains tax (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:

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

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

o 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 deceased A died, the property passed to you as an executor of their estate. The property was deceased A'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 deceased A'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 will settle 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 has been caused by Supreme Court proceedings between deceased A, child A and child B which were not finalised until late 20XX.

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 until settlement date.