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Edited version of private advice
Authorisation Number: 1051911805674
Date of advice: 20 October 2021
Ruling
Subject: Commissioner's discretion - deceased estate
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 or loss you made on the disposal?
Answer
Yes. Having considered your circumstances and the relevant factors the Commissioner will allow an extension of time. Further information about the Commissioner's discretion can be found by searching 'QC 66057' on ato.gov.au
This ruling applies for the following periods:
Year ended 30 June 20xx
The scheme commences on:
1 July 20xx
Relevant facts and circumstances
The Deceased passed away on xx/xx/20xx.
The Property was the Deceased's main residence up until their date of death and was not used for income producing purposes prior to or after the Deceased died.
Probate was granted to the executors on xx/xx/20xx.
Title to the Property was transferred to the executors on xx/xx/20xx.
The executors had planned to sell the Property prior to the expiration of the 2-year period.
Both executors lived interstate from the Property, which meant they needed to travel across a State border to attend to the deceased's personal effects and prepare the Property for sale.
Delays in removal of the Deceased's personal effects and preparation of the property were encountered due to global pandemic restrictions that impacted Australia, more specifically State to State travel. State governments implemented a border bubble which only allowed travel in a certain area. Their travel to the Property was outside the allowable area. One of the executors both phoned and emailed the relevant State government department requesting an exemption so that the Property could be sold but was told in both instances that an exemption would not be given.
Once the border restrictions were eased, the executors attended the property to meet with a real estate agent and solicitor.
The Property was listed in xx/20xx and a contract was signed on xx/xx/20xx, with settlement occurring on xx/xx/20xx, being x months after expiration of the 2-year period.
Relevant legislative provisions
Income Tax Assessment Act 1997 subsection 118-195(1)