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Edited version of private advice
Authorisation Number: 1051595590998
Date of advice: 17 October 2019
Ruling
Subject: Extension of time to sell a property from a deceased estate
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
This ruling applies for the following period:
Year ending 30 June 20XX
The scheme commences on:
1 July 20XX
Relevant facts and circumstances
The deceased owned the property. The property was the deceased's main residence. The property is less than X hectares.
The deceased died in 20XX.
The Public Trustee began administration of the estate mid 20XX.
The deceased's death certificate noted 'medical condition' for a duration of weeks. This duration of illness brought into question their capacity at the time they made the Will. Medical reports obtained by the Public Trustee state the opinion that the deceased did not have the capacity at the time they made the Will.
The Official Solicitor began acting in this regard and obtaining all necessary information to have the authority approved through the Supreme Court. This went on for many years as attempts were made to gather all medical records.
During Spring of 20XX, the Supreme Court granted the Order to administer (OA) the estate.
The contract to sell the property was signed during the first few months of 20XX. A contract for sale of the property was signed mid 20XX and settlement occurred just over a month after.
The estate administration was significantly delayed due to having to confirm the testamentary capacity of the deceased and with difficulty in obtaining instructions from all the beneficiaries of the estate who all live overseas and have very limited English language skills.
The property could not be disposed of by the Trustee within X year time-frame as the Public Trustee had to provide all necessary information to have authority approved at the Supreme Court.
Relevant legislative provisions
Income Tax Assessment Act 1997 Section 118-110.
Income Tax Assessment Act 1997 Section 118-195.