Edited version of your written advice

Authorisation Number: 1013094392085

Date of advice: 20 September 2016

Ruling

Subject: Capital gains tax - deceased estate - Commissioner's discretion to extend the two year period - main residence exemption

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 period

Year ended 30 June 20XX.

The scheme commences on

1 July 20XX.

Relevant facts and circumstances

The deceased and his spouse acquired a dwelling in 19XX (the dwelling).

The deceased's spouse passed away in 20XX, leaving him/her 50% interest in the dwelling to the deceased.

The deceased passed away in 20XX.

The dwelling was the deceased's main residence, and has not been used to produce assessable income.

A and B were named executors of the estate in the will.

Probate was granted on 20XX.

C, a child of the deceased, lived with and cared for the deceased for a number of years before the deceased's death.

C moved out of the dwelling in mid-20XX.

General repairs were needed to the dwelling to prepare it for sale.

The dwelling was placed on the market in 20XX, and was sold at auction in shortly afterwards.

Settlement for the dwelling is 20XX, more than two years after 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

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

Reasons for decision

Summary

The Commissioner will exercise his discretion under subsection 118-195(1) of the Income Tax Assessment Act 1997 (ITAA 1997) and allow an extension of time until mid October 20XX.

Detailed reasoning

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 the two year time period where the trustee or beneficiary of a deceased estate's ownership interest ends after two years from the deceased's death. This discretion may be exercised in situations such as where:

1. the ownership of a dwelling or a will is challenged;

2. the complexity of a deceased estate delays the completion of administration of the estate;

3. 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

4. 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 Commissioner accepts that it is appropriate to grant the short extension that you have requested.