Disclaimer This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law. You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4. |
Edited version of your written advice
Authorisation Number: 1051328944535
Date of advice: 19 January 2018
Ruling
Subject: Capital gains tax – deceased estate 2 year discretion
Question 1
Will the Commissioner exercise his discretion under subsection 118-195(1) of the Income Tax Assessment Act 1997 (ITAA 1997) and extend the 2 year period until XX November 20XX?
Answer
Yes
Having considered your circumstances and the relevant factors, the Commissioner is able to apply his discretion under subsection 118-195(1) of the ITAA 1997 and allow an extension of time until XX November 20XX. Further information on the relevant factors and inheriting a dwelling generally can be found on our website ato.gov.au and entering Quick Code QC52250 into the search bar at the top right of the page.
This ruling applies for the following period
The year ending 30 June 2018
The scheme commences on
1 July 2017
Relevant facts and circumstances
The deceased died on xxxxx
The deceased acquired (the property) with their spouse as joint tenants on xxxx.
The deceased acquired full ownership of the property upon the death of their spouse on xxxxx.
The property’s title remained in both names after the death of the deceased’s spouse.
The Estate of the deceased lodged the notice of death of the deceased’s spouse and property transferred to the deceased on or about xxxxx.
The property was the deceased’s main residence at the time of their death and has not been used to produce assessable income.
The deceased’s relatives, B and C were appointed as Executors of the deceased estate.
The deceased’s Will gave a “right to occupy” to B and C.
The B resided at the property as B’s main residence from xxxxx until completion of the sale of the property on xxxxx. B did not use the property to produce assessable income.
The property remained in the deceased’s name until property sold.
Probate was delayed due to the inaction of the solicitor appointed in the deceased’s will and their refusal to release the Will to the Executors and/or the new solicitors. Failed attempts to obtain the Will made by the first solicitor and Executors until a new solicitor was appointed on xxxxx.
The property was placed on market for sale in late xxxxx.
A contract for sale was signed xxxxxxx, on condition that probate was granted.
Clause 53 of sales contract stated that “completion of this contract is subject to and conditional upon the executors (names stated) of the estate being registered as the proprietors of the subject property.
Probate was granted on xxxxxx.
The property was transferred into the names of the Executors on xxxxxx.
The property settled xxxxxx.
Relevant legal provisions
Income Tax Assessment Act 1997 Subsection 118-195