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Edited version of private advice
Authorisation Number: 1051911938309
Date of advice: 25 October 2021
Ruling
Subject: CGT - deceased estate
Question
Will the Commissioner exercise his discretion under subsection 152-80(3) of the Income Tax Assessment Act 1997 (ITAA 1997) to extend the time limit to XXX 20XX so that small business CGT concessions may be applied?
Answer
Yes. Having considered your circumstances and the relevant factors, the Commissioner is able to apply the discretion under subsection 152-80(3) of the ITAA 1997 and allow an extension of time until the property was sold.
Further information on the small business concession and how they apply when someone has passed away can be found on our website by searching QC 52292.
Note: the private ruling has been limited to the question regarding whether an extension of time will be granted. You advised that the asset would have qualified for the small business concession if the deceased had disposed of their interest immediately prior to her death. The private ruling on whether an extension of time will be granted was issued on this basis. Therefore, the Commissioner did not consider whether the deceased was in fact entitled to the small business CGT concessions. More information about the concessions can be found on our website by searching QC 22165 on ato.gov.au.
This ruling applies for the following period:
Year ended XX June 20XX
The scheme commences on:
XX July 20XX
Relevant facts and circumstances
On XX July 20XX, the deceased and the spouse started a primary production business in a partnership.
The spouse owned the property, holding pre-CGT interest and post-CGT interest.
The deceased inherited the interest in the property upon the passing of the spouse and continued operating the primary production business as a sole trader.
On XX March 20XX, the deceased passed away.
On XX February 20XX, a real estate specialist was appointed as the sole agent for the property.
An auction date was set for XX April 20XX. However, the auction was cancelled due to COVID-19 and the associated government restrictions.
The real estate agent continued marketing the property with several strong enquiries. However, these did not eventuate.
On XX May 20XX, the property was sold.
You anticipate that without the COVID-19 restrictions, the property would have sold had the auction gone ahead.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 152-80
Income Tax Assessment Act 1997 subsection 152-80(3)