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Edited version of your written advice
Authorisation Number: 1051461039417
Date of advice: 29 November 2018
Ruling
Subject: Capital gains tax - deceased estate
Question
Will the Commissioner allow an extension of time for you to dispose of your ownership interest in the dwelling and disregard the capital gain you make on the disposal?
Answer
Yes.
Having considered your circumstances and the relevant factors, the Commissioner will allow an extension of time. Further information about this discretion can be found by searching 'QC 52250' on ato.gov.au
This ruling applies for the following period:
Year ended 30 June 2019
The scheme commenced on:
1 July 2018
Relevant facts
The deceased acquired a dwelling (The dwelling).
The deceased passed away in 2015 (The deceased).
The dwelling was the deceased’s main residence.
The dwelling was not used for income producing purposes.
The deceased’s will also contained an informal document which detailed provisions in relation to the distribution of the deceased’s personal assets.
The deceased’s will provided that their entire estate was to be distributed to their children.
The executors applied for a grant of probate in 2016.
The relevant court requisitioned the application and required that the executors obtain the consent of all the beneficiaries in relation to the informal document.
A beneficiary, ‘A’, did not consent to the grant of probate after obtaining legal advice.
The executor’s instructed solicitors to attempt to resolve the dispute.
The dispute was unable to be resolved and ‘A’ filed an affidavit in 2016 in relation to the informal document.
The dispute was resolved in 2016 and probate was granted.
The title to the dwelling was transferred to the executors in 2017.
The dwelling required some repairs prior to sale.
The executor’s also experienced some unforeseen personal circumstances which delayed the sale of the dwelling.
The dwelling was placed on the market for sale in 2018.
The dwelling was sold by auction in 2018.
Settlement was delayed for a short period by the purchasers.
Settlement occurred in 2018.
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)