Edited version of your private ruling

Authorisation Number: 1012595922168

Ruling

Subject: Capital gains tax - deceased estate - Commissioner's decision to extend the two year period - main residence exemption

Question

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 period

A specified date

The scheme commences on

1 July 2014.

Relevant facts and circumstances

Your parent (the deceased) owned a property which was their main residence.

The deceased died more than two years ago.

The beneficiaries of the deceased's estate are you, your siblings, sibling A and sibling B.

The deceased's estate was handled by the Public Trustee.

The Public Trustee advised the beneficiaries that you were not to enter the house while the settlement was going through other than to maintain the lawns.

The property was transferred into the beneficiaries' names approximately 10 months ago.

The property fell into disrepair during the period between the deceased's date of death and when the property was transferred into the beneficiaries' names.

During the period the property remained vacant holes in the roof had caused water damage in some rooms.

An assessment of the property was ordered by the Public Trustee and there were several issues of disrepair noted..

Prior to receiving information from the Public Trustee it was you and your siblings' intention was to repair and dispose of the property shortly after the deceased's death.

Many personal circumstances and difficulties have prevented you and your siblings disposing of the property within two years of the deceased's death:

The property will be on the property market by the end of next month.

Settlement will occur on the disposal of the property before a specified date.

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 ITAA 1997 where a capital gains tax 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 dependent 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, an interest in 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 (for example: 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 due to you being unable to attend to the deceased estate due to serious personal circumstances arising during the two year period.

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.

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 to a specified date.