| Disclaimer This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law. You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4. |
Edited version of your written advice
Authorisation Number: 1012705943026
Ruling
Subject: Capital gains tax
Question and answer
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?
Yes.
This ruling applies for the following period:
Year ending 30 June 2014
The scheme commenced on:
1 July 2013
Relevant facts and circumstances
The deceased passed away more than 2 years ago.
The property was the main residence of the deceased prior to the date of death, and the property was not used to gain or produce assessable income after the date of death,
Probate was granted 3 months after the deceased died.
A challenge to the will commenced 9 months after the deceased died with proceedings commencing in the Supreme Court.
The executor was aware of the challenge a few months prior to the proceedings commencing.
The property was placed on the market 11 months after the deceased died.
The property was sold 6 months past the 2 year time period.
The market was slow and this also delayed the sale.
The property was greater than 2 hectares in size.
Relevant legislative provisions:
Income Tax Assessment Act 1997 Section 118-130.
Income Tax Assessment Act 1997 Section 118-195.
Reasons for decision
When a person inherits a deceased person's dwelling, they may be exempt or partially exempt when a capital gains tax (CGT) event happens to it (for example, they sell it).
Where the dwelling is sold within two years of the deceased's death, the trustee or beneficiary can disregard the capital gain or capital loss resulting from the sale.
A trustee or beneficiary of a deceased estate may apply to the Commissioner to grant an extension of the two year time period, where the CGT event happens in the 2008-09 income year or later income years. Generally, the Commissioner would exercise the discretion in situations where the delay is due to circumstances which are outside of the control of the beneficiary or trustee, for example:
• 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 circumstances outside the beneficiary or trustee's control.
In exercising the discretion the Commissioner will also take into account whether and to what extent the dwelling is used to produce assessable income and for how long the trustee or beneficiary held the ownership interest in the dwelling.
In your case, there was a challenge to the will which delayed the sale of the property. The deceased died a number of years ago and formal proceedings commenced in the Supreme Court. The property was placed on the market 11 months after the deceased died and was sold 6 months past the 2 year time period. The market was slow and this also delayed the sale of the property.
For these reasons, the Commissioner will exercise his discretion to allow an extension to the two year time period for the dwelling and up to 2 hectares of land.
Please note:
The CGT exemption applies to a dwelling and up to 2 hectares of land. The remaining land will be subject to CGT and may require a valuation to determine the cost base and capital gain.