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Edited version of your written advice
Authorisation Number: 1051511458826
Date of advice: 01 May 2019
Ruling
Subject: Capital gains tax - deceased estate -2 year discretion
Question
Will the Commissioner allow an extension of time to 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 20XX
The scheme commences on:
1 July 20XX
Relevant facts
The deceased acquired a dwelling (The dwelling)
The deceased passed away on in 20XX (The deceased)
The dwelling was the deceased’s main residence.
The deceased was survived by a number of children (‘A’) and (‘B’)
‘A’ was named as the executor of the estate.
‘A’ obtained a grant of probate in the year of the deceased’s death.
Approximately one year after the deceased’s death, ‘B’ lodged a caveat on the title to the dwelling which prevented the dwelling from being sold.
Legal proceedings were commenced by ‘B’ in the relevant Court approximately 2 years and 3 months after the deceased’s death.
The legal proceedings were eventually resolved and the dwelling was prepared for sale.
The dwelling required extensive clearing and maintenance.
The original certificate of title was also lost and a replacement was required before the sale of the dwelling could be undertaken. This caused delays in the sale of the dwelling.
Settlement occurred approximately 2 years and 8 months after the deceased’s death.
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)