Edited version of your written advice

Authorisation Number: 1012851121656

Date of advice: 5 August 2015

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 to the two year period until settlement?

Answer

No.

This ruling applies for the following period

Year ended 30 June 2016.

The scheme commences on

1 July 2015.

Relevant facts

The deceased acquired a dwelling prior to 20 September 1985

The deceased) passed away in the 20XX income year.

The dwelling had been the deceased's main residence.

The dwelling was occupied by the deceased's child (Child A) during this period.

Child A suffers from a medical condition.

The deceased's will, provides that you and child A were to hold the dwelling as joint tenants.

The deceased's will, did not include a provision of a life interest or a right to occupy the dwelling to child A.

Child A passed away in the 20YY income year.

The dwelling has not been used to produce assessable income.

You have not placed the dwelling for sale as you stay at the dwelling for periods and probate of child A estate has recently been granted.

You anticipate selling the dwelling in 2016

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

Income Tax Assessment Act 1997 subsection 118-195(1)

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, an interest in 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 complexity of the deceased estate is not sufficient to explain the delay in disposing of the deceased dwelling.

In determining whether or not to grant an extension, the Commissioner also considers 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 not apply his discretion under subsection 118-195(1) of the ITAA 1997 and allow an extension to the two year time limit until settlement.

The normal capital gains tax (CGT) rules will apply to the disposal of the property.

CGT

The most common CGT event, CGT event A1, occurs when you dispose of an asset to another entity. The time of the event is when you enter into the contract for disposal of it, or if there is no contract when the change of ownership occurs.

If two or more people acquire a property asset together it can be either as tenants in common or as joint tenants.

If a tenant in common dies, their interest in the property is an asset of their deceased estate. This means it can be transferred only to a beneficiary of the estate to be disposed of (or otherwise dealt with) by the trustee/s of the estate.

Deceased estate - main residence

Special rules apply to the asset that was a deceased person's main residence. If you inherit a deceased person's dwelling, you may be exempt or partially exempt when a CGT event occurs to it.

Please note: You acquired two separate interests in the dwelling, the first being a half interest when your parent passed away and the market value of this interest is calculated at this date. The second interest was acquired on the death of your sibling and the market value of this interest is calculated as at this date.

As a result of having two separate interests in the property, you have two different cost bases for each interest acquired on the death of the deceased.

Information on how CGT applies is available on our website - www.ato.gov.au. In your case, documents titled 'Working out your capital gain' (QC 40492) and 'Cost base of an asset acquired from a deceased estate' (QC 22159) may assist you in calculating your capital gain.