| Disclaimer You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4. |
Edited version of private advice
Authorisation Number: 1051789479193
Date of advice: 16 December 2020
Ruling
Subject: Capital gains tax - deceased estate
Question
Will the Commissioner exercise his discretion under subsection 118-195(1) of the Income Tax Assessment Act 1997 (ITAA 1997) and extend the 2 year period?
Answer
Yes.
Having considered your circumstances and the relevant factors, the Commissioner is able to apply his discretion under subsection 118-195(1) of the ITAA 1997 and allow an extension of time. Further information on the relevant factors and inheriting a dwelling generally can be found on our website ato.gov.au and entering Quick Code QC52250.
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 the Dwelling before 20 September 1985.
The Deceased acquired the Dwelling with the spouse.
The Deceased used the Dwelling as a main residence.
The Deceased never used the Dwelling for income producing purposes.
The Deceased did not own any other dwelling.
A Maintenance Agreement between the Deceased and the spouse was executed.
The Maintenance Agreement was filed with the Family Court of Australia
The Maintenance Agreement stated the spouse had the right to occupy and use the Dwelling until such time as the spouse "remarries or no longer resides in the dwelling hours".
The spouse did not remarry.
The spouse occupied the Dwelling as the main residence.
The spouse did not use the Dwelling for income producing purposes.
The spouse entered nursing care.
ABC was the Original Executor of the Deceased's Estate.
ABC had passed away.
XYZ was granted Probate pursuant to ABC's Will in the Supreme Court of State A.
The Dwelling was transferred from ABC to XYZ as trustee.
In accordance with section 16(b) of the Trusts Act 1973 (QLD) XYZ assumed the role of trustee of the estate of the Deceased. Person A did not apply for Probate of the Deceased's Estate as the "executorial" phase of the estate had been completed and our client merely took on the role of "trustee".
The Dwelling was sold.
The Dwelling settled.
Relevant legislative provisions
Income Tax Assessment Act 1997 subsection 118-195(1)