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Edited version of private advice
Authorisation Number: 1051588268165
Date of advice: 30 September 2019
Ruling
Subject: Extension of time to apply the small business capital gains tax (CGT) concessions for a deceased estate
Question
Will the Commissioner exercise the discretion under subsection 152-80(3) of the Income Tax Assessment Act 1997 (ITAA 1997) to extend the time limit to allow the small business capital gains tax (CGT) concessions to be applied on the sale of the property?
Answer
Yes. Having considered your circumstances the Commissioner will exercise the discretion under subsection 152-80(3) of the ITAA 1997 and allow an extension of time until it was sold. Further information on death and the small business CGT concessions can be found on our website, ato.gov.au by searching quick code QC 52292.
This ruling applies for the following period:
Year ending 30 June 20XX
The scheme commences on:
31 December 20XX
Relevant facts and circumstances
The deceased acquired the legal title to a farm and owned it for XX years until their death.
The deceased carried on a business of primary production and would have been eligible to apply the small business capital gains tax concessions.
A dispute developed between the two executors named in the deceased's will as to who would apply for probate.
One year after the deceased's death a family provision summons was filed by a number of the deceased's relatives seeking an order for additional provision from the estate.
Probate was granted to two of the applicants by the state Supreme Court.
After probate was granted attempts were made to sell the farm. Initially, expressions of interests were sought from neighbouring farmers and regional agricultural producers by an agent of the solicitor acting for one of the co-executors.
Lawyers were engaged to act on the sale of the farm.
A rural agent was appointed through an expression of interest process to market the property and conduct a tender process for the sale of the land.
The final crop of wheat was harvested by a share farmer pending the sale of the property.
The tender process was conducted over a three month period and resulted in the sale of the property more than two years after the deceased's death.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 152-80