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Edited version of private advice
Authorisation Number: 1051576659196
Date of advice: 12 November 2019
Ruling
Subject: CGT deceased estate
Question
Will the Commissioner exercise his discretion to extend the 2 year period under section 118-195 of the Income Tax Assessment Act 1997 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 and circumstances
The deceased died in Winter 20XX.
The residential property situated in Australia was purchased by the deceased prior to the introduction of capital gains tax (CGT).
The Will of the deceased included a provision to allow Person A to remain living at the property during his lifetime. However this person did not occupy the property despite being advised of his entitlement.
The administrator of the estate advised Person A of his right to occupy this property. However, despite written acceptance of this offer, and despite storing personal items at the property, an audit by the administrator showed that Person A had failed to meet the terms of the right to residence. As a result the right of residence was terminated.
The property was used as the main residence of the deceased until the death of the deceased following which the property remained vacant until settlement.
After the death of the property owner the Will was administered by the local office of a public trustee. The Will was completed in Winter 20XX. It was only after this was completed that the beneficiaries had the opportunity to enter the property to effect necessary repairs, repainting and re-carpeting so as to allow the property to be offered for sale.
The property was listed for sale one month later. A contract to sell the property was signed in Spring 20XX with settlement occurring within 2 months of this contract.
Relevant legislative provisions
Income Tax Assessment Act 1997 Subsection 118-195(1)