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Edited version of private advice
Authorisation Number: 1051945443913
Date of advice: 18 February 2022
Ruling
Subject: Commissioner's discretion to extend 2 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 apply his discretion for up to two hectares of land with your dwelling under subsection 118-195(1) of the Income Tax Assessment Act 1997 and allow an extension of time. Further information about this discretion can be found by searching 'QC 66057' on ato.gov.au
This ruling applies for the following period
Year ended 30 June 20XX.
The scheme commences on
1 July 20XX.
Relevant facts and circumstances
The deceased acquired a dwelling prior to 1985 (the Dwelling).
The dwelling is located on land less than 2 hectares in size.
The deceased passed away in 20xx (the Deceased).
Probate was granted in 20xx.
The Deceased acquired a significantly large amount of personal possessions during their lifetime.
Some of the items stored at the property were classed as dangerous and required specialist removal.
The Executors were unable to engage professionals to undertake the task as it was deemed an unsafe work environment.
The Executors were required to attend to the removal of the personal items and the large amount of materials which required inspecting to determine if they were to be kept or disposed.
The Executors experienced difficulties in attending the dwelling due to COVID-19 restrictions.
During the period from obtaining probate until the eventual sale a large amount of time was spent removing the personal items from the dwelling. The geographical distance also created some problems in attending the dwelling as COVID-19 impacted your ability to travel to the dwelling.
A real estate agent was engaged to sell the dwelling however they advised that the dwelling was unsaleable in its current condition.
Once the dwelling was ready for sale the executors engaged lawyers to prepare contract for the sale and engage a real estate agent to sell the dwelling. This occurred between the period of xx 20xx and xx 20xx.
The dwelling was listed for sale by auction and settlement of the contract for sale occurred in 20xx.
You were required to undertake some repairs to the dwelling in order to sell the dwelling.
Relevant legislative provisions
Income Tax Assessment Act 1997 subdivision 115-A
Income Tax Assessment Act 1997 section 102-20
Income Tax Assessment Act 1997 section 104-10
Income Tax Assessment Act 1997 section 118-120
Income Tax Assessment Act 1997 section 118-130
Income Tax Assessment Act 1997 section 118-195