Edited version of your written advice

Authorisation Number: 1012891989476

Date of advice: 9 October 2015

Ruling

Subject: Capital gains tax and the Commissioner's discretion

Question 1

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.

Question 2

Can you disregard any capital gain or loss that arises from the disposal of the property under section 118-195 of the ITAA 1997?

Answer

Yes

This ruling applies for the following period:

Year ended 30 June 2016

The scheme commences on:

1 July 2015

Relevant facts and circumstances

The deceased died in 20XX.

The property was acquired after 20 September 1985.

A life interest was granted until the time of their passing in 20TT. The Estate of the life interest is not entitled to any part of the sale proceeds.

The deceased's main residence was occupied from the date of acquisition and the title remained with the estate during the life interest

The property was listed for an auction sale more than two years after the deceased's death.

Delay in the sale of the property and distribution to the Estate has occurred due to the life interest granted under the terms of the will.

Relevant legislative provisions

Income Tax Assessment Act 1997 subsection 118-130(3),

Income Tax Assessment Act 1997 section 118-195 and

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 (CGT) 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 dependant 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.

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.

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.

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.

Application to your circumstances

The property will be sold outside the two year period outlined in subsection 118-195(1) of the ITAA 1997. Therefore, you will only be able to disregard the capital gain from the sale of the property if the Commissioner grants an extension to the 2 year time limit.

The delay in disposing of the property was caused by the complexity of the deceased's estate which could not be finalised until the expiration of the life interest

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.