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Edited version of your written advice
Authorisation Number: 1051374902981
Date of advice: 24 May 2018
Ruling
Subject: Capital gains and deceased estate
Question
Will the Commissioner exercise the discretion under subsection 118-195(1) of the Income Tax Assessment Act 1997 (ITAA 1997) and allow an extension of time until settlement date?
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 settlement date. Further information on the relevant factors and inherited dwellings generally can be found on our website ato.gov.au and entering Quick Code QC52246 into the search bar at the top right of the page.
This ruling applies for the following period:
30 June 20XX
The scheme commences on:
1 July 20XX
Relevant facts and circumstances
Your relative purchased property circa 19XX as sole owner, which was their main residence. This dwelling was not used to produce income.
Your relative was of international heritage and an Australian resident.
On an overseas visit, your relative (deceased) passed away in 20XX.
The deceased did leave a will in 19XX. The will appointed an executor, but the deceased no longer had communications with this nominated executor. The will also appointed other relatives of the deceased only in case of the death of the nominated executor.
You had to communicate with solicitors, courts and Government agencies not just here in Australia but also overseas, which was a lengthy process to endure and out of your control.
On legal advice the nominated executor applied to the court for probate which was rejected.
As one of the deceased’s relatives had pre-deceased the deceased overseas, and to obtain the death certificate this was only possible through avenues by the deceased’s connections overseas.
Probate was eventually granted in 20XX.
Once probate was granted the property was prepared for sale and placed on the market.
Contract of sale was signed and settlement occurred in 20XX.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 104-10,
Income Tax Assessment Act 1997 section 118-195 and
Income Tax Assessment Act 1997 subsection 118-195(1).