Edited version of private advice

Authorisation Number: 1051796497387

Date of advice: 13 January 2021

Ruling

Subject: Capital gains tax - deceased estate

Question

Will the Commissioner allow an extension of time for the Estate to disregard the capital gain or capital loss made on disposal of the deceased's main residence?

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 acquired property post CGT, and this was the deceased's main residence until date of death.

The dwelling was never used for income producing purposes.

The deceased passed away in 20XX and left a will and a codicil.

In and around 20XX, the deceased requested minor changes to their will. The deceased passed away 20XX.

The tax agent and solicitor representing the deceased at the time, noted the deceased's intentions and attempted to fast track these minor changes, and these parties were unable to do so due to the death of the deceased.

Litigation commenced where the tax agent and solicitor had to present evidence to satisfy the Court.

The case was finalised, and the Court granted probate in 20XX.

The executors immediately took all the necessary steps to place the property on the market for sale.

The executors were successful in selling the property as a private sale and settlement on the property occurred approximately two years after the deceased passed away.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 104-10

Income Tax Assessment Act 1997 section 118-195