Edited version of private advice

Authorisation Number: 1051798397746

Date of advice: 1 February 2021

Ruling

Subject: Commissioner's discretion to extend the two-year period

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 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 ending 30 June 20XX

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

The deceased passed away during 20XX.

The property is the sole asset of the estate and the property title has remained in the deceased's name since their death.

The property was the deceased's main residence prior to their death.

Under the will, the deceased's spouse was given a life interest to reside at the property in return for paying all rates, taxes, and other such outgoings, until their death or sale of the property.

Upon death or sale, the asset would then transfer to the ultimate beneficiaries of the will.

The deceased's spouse was appointed under the will as the primary executor, with the deceased's niece also named as executor, where any disagreement between the parties the decision of The deceased's spouse was binding on The deceased's niece, thereby setting the framework for an administration trust until disbursement to the intended beneficiaries.

The deceased's niece's understanding was that following the deceased's death, the deceased's spouse as both spouse and primary executor of the estate would take responsibility to gain probate and pay taxes and charges in connection with the property as stipulated in the will.

The deceased's spouse passed suddenly during 20XX.

The deceased's spouse's current domestic partner (the partner) occupied the property at their date of death.

The partner was a cousin of both the deceased and the deceased's niece's mother.

The partner had regular contact with the deceased's niece's mother but despite knowing the conditions of the deceased's will decided not to inform the family of the deceased's spouse's passing resulting in a material delay to the disposal of the property.

The deceased's niece became aware of the deceased's spouse's death in early 20XX after a long‐time friend of the deceased and the deceased's spouse tracked down another family member.

As the secondary executor listed in the deceased's will, the deceased's niece then assumed responsibility for the property with the assistance of the lawyers who prepared the deceased's will.

The deceased's niece only became aware that the deceased's spouse had elected not to seek probate then and obtained probate in mid-20XX.

In parallel the deceased's niece instructed the lawyers to prepare a licence agreement for the partner to clarify terms of their occupation of the property until it was sold, and settlement reached.

The agreement was presented to the partner on in mid-20XX.

The partner refused to sign or commit to vacate or clear out the significant clutter or multiple vehicles from the property, causing further material delay by inhibiting presale preparations.

As a result of negotiations between the deceased's niece, the partner and their respective solicitors, the partner eventually vacated the property in late 20XX.

During this time period, the deceased's niece employed the services of a real estate agent in mid-20XX to facilitate sale of the property.

The real estate agent assisted with arranging for essential repairs, clean up and services to prepare the property.

In addition to delays from the partner's actions, this pre‐sale preparation was also protracted due to COVID-19 lockdown and restrictions as many services including real estate agents were restricted in their operation.

Listing of the property for sale as soon as practically possible occurred in late 20XX.

A buyer was quickly found and entered a contract of sale 7 days after listing with settlement completed 2 months later.

Relevant legislative provisions

Income Tax Assessment Act 1997 subsection 118-195(1)