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Edited version of private advice
Authorisation Number: 1051782638327
Date of advice: 1 December 2020
Ruling
Subject: Capital gains tax
Question 1
Will the Commissioner exercise his discretion under section 118-195 of the Income Tax Assessment Act 1997 (ITAA 1997) to allow an extension of time to the two years main residence exemption on a dwelling XX XX 20XX??
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
Question 2
Will the Commissioner exercise his discretion under subdivision 99A(2) of the Income Tax Assessment Act 1936 (ITAA 1936) to apply progressive individual rates of tax as per section 99 of the ITAA 1936?
Answer
Yes. After consideration of the relevant factors, the Commissioner is of the opinion that it would be unreasonable that section 99A of the ITAA 1936 should apply in relation to that trust estate in relation to the relevant years of income. Accordingly, section 99 of the ITAA 1936 will apply.
This ruling applies for the following periods:
Year ended 30 June 20xx
Year ended 30 June 20xx
Year ended 30 June 20xx
Year ended 30 June 20xx
Year ended 30 June 20xx
Year ended 30 June 20xx
Year ended 30 June 20xx
Year ended 30 June 20xx
Year ended 30 June 20xx
Year ended 30 June 20xx
Year ended 30 June 20xx
Year ending 30 June 20xx
The scheme commences on:
1 July 20xx
Relevant facts and circumstances
The deceased died in the 20xx income year.
The property their main residence for the whole of their ownership period and was never used to produce income.
The property was purchased by the deceased and their spouse in approximately 19xx as joint tenants.
In the 20xx income year the deceased's spouse died and they became sole owner of the property.
The deceased died without a signed will.
The deceased had an unsigned will which nominated a family friend as the executor of their estate and certain named beneficiaries residing in Country Y.
The deceased died intestate and the unsigned will could not be proven.
A long process of trying to find beneficiaries in Country Y commenced and translation of all documents was required.
Letters of administration were finally issued for the estate on XXX.
Settlement occurred on XX XX 20XX.
The property (now represented by cash) constituted the primary asset of the deceased estate.
On the appointment of the administrator by the court the assets of the deceased were transferred from the deceased to the administrator of the estate of the deceased person.
No other funds from outside the deceased estate have been brought into the estate or into the trust.
The trust has not borrowed or lent any money.
No special rights or privileges have been conferred or attached to the assets of the deceased estate.
Relevant legislative provisions
Income Tax Assessment Act 1936 section 99
Income Tax Assessment Act 1936 subsection 99A(2)
Income Tax Assessment Act 1997 section 118-195