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Edited version of your written advice
Authorisation Number: 1051502180268
Date of advice: 15 April 2019
Ruling
Subject: Two year exemption from capital gains tax for a deceased main residence
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 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:
1 July 2016 to 30 June 2018
The scheme commences on:
1 July 2016
Relevant facts and circumstances
This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling.
The deceased resided in their main residence until they passed. The property was never used for investment purposes and was less than 2 hectares in size.
The will appointed one executor of the estate and trustee of the estate.
Under the will, the deceased bequeathed the whole of the estate both real and personal to the trustee.
The executor was granted absolute discretion to hold proceeds in the trust for payment to beneficiaries and named charities, with the remainder of the estate for the executor
The will was contested shortly after the probate was granted. The Court held multiple hearings throughout the year. Final determination was reached by the Court later in that year.
The property was sold and settled shortly after, outside the two year exemption period.
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
Income Tax Assessment Act 1997 Subsection 118-195(1)