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Edited version of your written advice
Authorisation Number: 1012797449686
Ruling
Subject: Capital gains tax
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 to the two year period?
Answer
No.
This ruling applies for the following period
Year ended 30 June 2014
Year ending 30 June 2015
The scheme commences on
1 July 2013
Relevant facts and circumstances
The deceased purchased a property prior to 1985. It was their principal place of residence until they passed away in 20XX.
The deceased had made enquiries about the development potential of the residence in 20YY.
The deceased passed away before plans were submitted to Council.
Subsequently, at a meeting with the executors of the estate their desire to continue with the project was expressed.
The will did not direct the executors to obtain any approvals before selling the property.
The development approval process was delayed for various reasons.
The property was sold more than 2 years after the deceased's date of death with development approval.
Relevant legislative provisions
Income Tax Assessment Act 1997 subsection 118-195(1)
Reasons for decision
Subsection 118-195(1) of the ITAA 1997 states that if you own a dwelling in a capacity as trustee of a deceased estate, then you are exempt from tax on any capital gain made on the disposal of the property if:
• the property was acquired by the deceased before 20 September 1985, and
• your ownership interest ends within 2 years of the deceased's death (the Commissioner has discretion to extend this period in certain circumstances).
In this case, the deceased acquired the property prior to 1985.
The Commissioner can exercise his discretion in situations such as where:
• 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
You have an ownership interest in a property if you have a legal interest in the property. This means that if you sell a property, your ownership interest continues until the date of settlement (rather than the date the contract of sale is signed).
Having considered the relevant circumstances, the Commissioner will not exercise his discretion and extend the 2 year time limit.