| Disclaimer This edited version has been archived due to the length of time since original publication.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: 1051478614657
Date of advice: 30 January 2019
Ruling
Subject: Capital gains tax - deceased estate - 2 year discretion
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(s)
Year ended 30 June 2018
The scheme commences on
1 July 2017
Relevant facts
The deceased acquired a dwelling (the dwelling).
The deceased passed away in 2014.
The dwelling had been the deceased’s main residence prior to passing away.
The dwelling has not been used to produce income.
The deceased’s will contained a provision which allowed your stepparent, ‘A’ to remain living in the property provided certain conditions were met.
‘A’ passed away in 2016.
The deceased’s will appointed their solicitor, ‘B’ as executrix.
A grant of probate was issued in 2015.
The deceased suffered from a medical condition.
There were a number of wills left by the deceased.
A dispute between the deceased’s children concerning the validity of the wills resulted in delays in administering the estate.
The delays in administering the estate resulted in you obtaining legal representation and ultimately in commencing legal proceedings to have to the executor removed and a substituted executor appointed. The order was made in 2017.
The dwelling was placed on the market a short time later and settlement occurred in 2017.
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)