Edited version of your written advice

Authorisation Number: 1012914816392

Date of advice: 19 November 2015

Ruling

Subject: Commissioners discretion for the two year period

Question 1

Can the administrator claim the full main residence exemption as settlement occurred more than two years from the date of death?

Answer

No.

Question 2

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?

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 passed away more than two years ago.

The deceased died intestate and following the rules of intestacy, the residual beneficiaries are the children of the deceased.

The residual beneficiaries were not able to act as Administrator.

Accordingly the State Trustee was initially appointed as Administrator but they did not act in a timely manner to complete the administration.

When able, one of the beneficiaries immediately applied and was granted a letter of administration in 2015.

The deceased and children resided in the property since the late 1950s.

The property was not used to produce assessable income during the entire ownership period and is less than two hectares.

The property was sold in 2015 less than one month after the appointment of Administrator.

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 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 dependent 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.

For a dwelling acquired by the deceased, 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 relevant 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 that person disposed of the dwelling in their capacity as beneficiary, or

• your ownership interest ends within two years 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.

The property 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, 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

In your circumstances, we consider that the deceased estate was complex which led to delays in the completion of the administration. There were reasonable delays in the sale of the property due to the late appointment of an administrator.

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.