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Edited version of private advice
Authorisation Number: 1051961619388
Date of advice: 15 March 2022
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 property 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 ato.gov.au for 'QC 66057'.
This ruling applies for the following period:
Year ending 30 June 20xx.
The scheme commences on:
xx/xx/xxxx
Relevant facts and circumstances
The deceased passed away on xx/xx/xxxx.
The deceased acquired the property after 20 September 1985.
The property was the main residence of the deceased throughout their ownership period.
The property has never been used to produce assessable income.
Under the deceased's Will person A gained a right to reside in the property for life subject to certain conditions.
On xx/xx/xxxx person B and person C commenced legal proceedings seeking further provision from the estate.
On xx/xx/xxxx, the Court made orders rewriting the deceased's Will effectively removing person A's right to reside in the property. Instead, the Court ordered that the trustees of the estate sell the property and distribute the proceeds in accordance with the order of the Court.
Person A failed to vacate the property despite the requests of the trustees.
In xx 20xx the trustees made an application to the Court for an order to have person A removed from the property. The Court made an order that person A must vacate the property by xx/xx/xxxx.
Person A vacated the property in xx 20xx. However, person A left items on the property which the trustees had to deal with before the property could be put in the hands of real estate agents.
The property was listed for sale shortly after being vacated by person A. The property was sold at auction with contracts being signed on xx/xx/xxxx and settlement occurring on xx/xx/xxxx.
Relevant legislative provisions
Income Tax Assessment Act 1997 subsection 118-195(1)