Edited version of your written advice

Authorisation Number: 1012994179130

Date of advice: 8 April 2016

Ruling

Subject: Capital gains tax - deceased estate - main residence exemption

Question

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 periods:

Year ending 30 June 20XX

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

The deceased purchased the property prior to 20 September 1985.

The deceased died in the 20XX-XX financial year.

The property was the main residence of the deceased when they passed away.

Since the deceased's death, the property has remained vacant with no income being derived from it.

The property was sold and settled in the 20XX-XX financial year.

The executor made every attempt to sell the property within the 2 years.

The executor entered into a number of contracts sell the property. The previous contracts fell through due to the circumstances of the purchasers which were outside the control of the executor.

The property was not sold within 2 years of the deceased's date of death.

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 and

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 your capacity as trustee of a deceased estate (or it passed to you as a beneficiary of an 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, or

• the property was acquired by the deceased on or after 20 September 1985 and the dwelling was the deceased's main residence just before the deceased's death and was not then being used for the purpose of producing assessable income, and

• your ownership interest ends within 2 years of the deceased's death (the Commissioner has discretion to extend this period in certain circumstances).

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).

In this case, the property was purchased by the deceased before 20 September 1985 and was their main residence until they passed away in the 20XX-XX financial year. The property was not sold within 2 years of the deceased's date of death.

You will only be able to disregard the capital gain from the sale of the property if the Commissioner extends the 2 year time period.

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

The reason for the delay in selling the property was the result of previous contracts falling through. The contracts fell through due to the individual circumstances of the purchasers. These personal circumstances were completely beyond the control of the executor. The executor made every attempt to sell the property within the two year timeframe.

Having considered the circumstances and the factors outlined above, the Commissioner is able to apply his discretion under subsection 118-195(1) of the ITAA 1997 and allow an extension of time until the sale of the property has settled.