| Disclaimer This edited version has been archived due to the length of time since original publication.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: 1051500741247
Date of advice: 01 April 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
Relevant Facts
The deceased acquired a dwelling (The dwelling)
The deceased passed away in 20XX (The deceased)
The dwelling was the deceased’s main residence.
The deceased left a number of children, ‘A’ and ‘B’ who were under 18 at the passing of the deceased
The deceased’s will contained a clause which prevented the sale of the dwelling until ‘A’ attained the age of ‘X’.
‘A’ attained the age of X on in 20XX.
The will of the deceased also contained a clause which required that the dwelling be used to produce income to offset the upkeep of the property and for living expenses of ‘A’ and ‘B’.
The dwelling has been used to produce assessable income from 20XX.
‘A’ and ‘B’ had considered moving into the property once ‘A’ had attained the age of ‘X’.
In 20XX the property manager indicated to the existing tenant that their lease would not be renewed.
The tenant made an offer to purchase the dwelling, which was accepted by ‘A’ and ‘B’.
Settlement occurred in 20XX.
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)