Edited version of private advice

Authorisation Number: 1051833561911

Date of advice: 31 May 2021

Ruling

Subject: Capital gains tax

Question

Will the Commissioner exercise his discretion under section 118-195 of the Income Tax Assessment Act 1997 to allow an extension of time to the two years main residence exemption on a dwelling?

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 died on late 20YY.

The deceased purchased the property after 1985.

The property was the deceased's main residence for the whole of his ownership period.

The deceased and their spouse owned the property as joint tenants. The spouse's interest in the property passed to the deceased upon the spouse's death in the early 2010's.

The property was less than XX hectares in size.

The property was not used to derive assessable income.

Probate was granted on mid-20XX.

The delay in selling the property was due to problems with one of the executors not for filling their role properly.

The other two executors were interstate and found it difficult to monitor what the executor was doing.

The executor moved into the property as they had a key and refused to move out.

The other executors took steps to have the executor removed and this all took time and eventually resulted in a court order being issued to have them removed as executor.

The court order was issued on early 20XX after the executor died in early 20XX.

The property was placed on the market and settlement took place in late 20XX.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 118-195