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Edited version of your written advice
Authorisation Number: 1012843225474
Date of advice: 17 July 2015
Ruling
Subject: Capital gains tax - Deceased estate - 2 year 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 to the two year period?
Answer
Yes.
This ruling applies for the following periods:
Year ending 30 June 2016
The scheme commenced on:
1 July 2015
Relevant facts
The deceased purchased a dwelling after 19 September 1985.
The deceased passed away in the 20YY income year.
The dwelling had been the deceased's main residence until moving into a nursing home prior to death.
The trustee will make an absence choice in relation to period whilst the deceased was residing in the nursing home.
The deceased was suffering from a medical condition.
The deceased drafted a will in the 20XX income year whilst lacking capacity to do so.
The will was challenged by the beneficiaries of the estate with probate in the solemn form lodged by the legal representative's named as executors with a hearing listed in the 20ZZ income year.
Probate was granted by the Supreme Court in accordance with an arbitration agreement.
You have provided a copy of the arbitration agreement and it forms part of and should be read in conjunction with this private ruling.
Relevant legislative provisions:
Income Tax Assessment Act 1997 section 104-10
Income Tax Assessment Act 1997 subsection 118-130(3)
Income Tax Assessment Act 1997 section 118-195
Explanatory memorandum to the Taxation Laws Amendment Bill (No.9) of 2011 (Cth)
Reasons for decision
A capital gain or capital loss may be 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 and a beneficiary of a deceased estate or you owned it as the trustee of the deceased estate.
For a dwelling acquired by the deceased prior to 20 September 1985, 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 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 the CGT event was brought about by that person, or
• your ownership interest ends within two years of the deceased's death.
For a dwelling acquired by the deceased on or after 20 September 1985, the dwelling must have been used as the deceased's main residence just before their death and not used to produce assessable income at that time.
In your case, when the deceased died, the dwelling passed to you. The dwelling was the deceased's main residence prior to death, and at that time, was not being used to produce assessable income. However, the dwelling 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 dwelling 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.
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 dwelling was due to the will of the deceased being challenged which delayed the completion of the administration of the estate.
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 will apply his discretion under subsection 118-195(1) of the ITAA 1997 and allow an extension to the two year time limit until settlement.