Edited version of private advice

Authorisation Number: 1051837065505

Date of advice: 25 May 2021

Ruling

Subject: CGT - extension of time

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 ttheir 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 ending 30 June 20XX

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

The deceased died during the year ended 30 June 20XX.

The property was the deceased's main residence prior to their death and was acquired prior to 20 September 1985.

The deceased was predeceased by their spouse.

Probate of the will was granted on six months after the deceased's death.

Person A and Person B are the executors of the deceased's will.

The deceased was survived by their children, who except for Person C, are beneficiaries of the estate.

The property at the time of the deceased's death was occupied by Person C.

Person C has suffered from a severe intellectual handicap since birth and from epilepsy since early childhood.

During adulthood Person C developed severe anti-social behaviour, is incommunicative and incapable of making any informed decision.

Medications to control their behaviour have been trialled over time but have been ineffective.

Person C refuses to engage with any health professional and is totally socially withdrawn.

Attempts to obtain a cognitive or psychological assessment have been described by their doctor as a "futile exercise" as Person C simply refuses to take part.

The doctor further comments that Person C has "no ability whatsoever" to understand or act on information relevant for making decisions or to appreciate the consequences of their actions.

Person C has lived in the property since birth and has been totally dependent upon their parents for all their needs.

As both parents are now deceased, Person C's needs are being met by their siblings collectively and in particular, Person A, with whom Person C has a somewhat workable relationship.

Person A has been appointed by the Tribunal to act as Person C's guardian to make decisions about their ongoing financial matters.

Attempts had been made to discuss with Person C the need for Person C to be closer to family members, but Person C was unable to discuss or even contemplate the idea of moving out of the property.

Alternative living arrangements were provided but it was unlikely that Person C would be persuaded to move.

It was strongly believed that to force Person C from their home would have an extremely adverse effect on their mental and physical health.

Person C's doctor has provided a letter stating:

I am most familiar with the personal and medical history of Person C having attended them and their parents for over XX years. I am also aware that both their parents are now deceased and Person C continues to live in the family home with a degree of support from their siblings.

Person C's main health issues are their intellectual impairment and pronounced anti-social behaviour. They have been unable to work for approximately XX years due to their difficulty interacting with others, especially strangers. They prefer to exist in controlled surroundings with no possibility of any change and any likely future change in residence for them would have potentially catastrophic circumstances.

I believe I am the only medical practitioner that Person C has seen as they will react to any unfamiliar circumstance. Their routine is rigid beyond description but in saying this they appear quite content. Any potential significant change in environment would almost certainly cause significant decline in Person C's physical and mental well-being. It would be my opinion that the best option for Person C in regard to their health is to remain living at their family residence.

There have been several incidents where Person C would refuse to leave the house to obtain urgent medical attention and as a result Person A had to call the ambulance and the police to have Person C physically removed from the premises. These incidents were very distressing for Person C and their family.

Person C was hospitalised for a period of time.

Whilst in hospital Person C's family decided that Person C would not return to the property but would be relocated to a residence near Person A's home. Person C was not informed of the decision due to their obvious reluctance to leave the property in the past.

Upon release from hospital Person C was brought to the new residence by ambulance and the family was then able to make the property available for sale.

The property was listed for sale within two months of Person C vacating the property.

The property was sold at auction one month later.

The sale of the property settled 2 years, 11 months and 3 weeks after the deceased's death.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 118-195