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Edited version of your written advice
Authorisation Number: 1051485968266
Date of advice: 21 February 2019
Ruling
Subject: Two year exemption from capital gains tax for a deceased main residence.
Question
Will the Commissioner exercise his discretion under 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. 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 ending XX June 20XX
The scheme commences on:
XX June 20XX
Relevant facts and circumstances
The will was signed by the deceased appointing the children executor’s of the will. The will stated the two executors to share the estate as tenants in common in equal shares.
The deceased’s property was their main residence, until they passed. Probate of the will was granted later that year.
The executors appointed a lawyer to transfer the title of the property into their names. There were issues transferring the title of the property into the executor’s name, this matter was finalised on the XX May 20XX.
One of the executor’s resided in the property due to financial hardship which they stayed rent free, all expenses related to the property were shared between the executors until the property was sold.
The executor’s were in discussion with real-estate agents before the end of the two year period to sell the property, but due to unforeseen personal circumstances this delayed the process of selling.
Once the property was actively marketed it sold a short time after.
You failed to meet the two year period by only three months.
Relevant legislative provisions
Income Tax Assessment Act 1997 Subdivision 115-A
Income Tax Assessment Act 1997 section 102-20
Income Tax Assessment Act 1997 section 118-195
Income Tax Assessment Act 1997 section 104-10