| Disclaimer You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4. |
Edited version of private advice
Authorisation Number: 1051967783047
Date of advice: 7 April 2022
Ruling
Subject: CGT - deceased estate - small business concessions
Question
Will the Commissioner exercise discretion under subsection 152-80(3) of the Income Tax Assessment Act 1997 (ITAA 1997) to grant an extension of the two-year period until DD MM YYYY?
Answer
Yes.
Having considered your circumstances including the delay in the granting of probate and the auction being rescheduled due to COVID-19 restrictions, the Commissioner is able to exercise discretion under subsection 152-80(3) of the ITAA 1997 to allow an extension of the two-year period until DD MM YYYY.
Further information on 'death and small business capital gains tax (CGT) concessions' can be found on our website by searching QC 52292.
Further information for you to consider
The private ruling has been limited to the Commissioner's exercise of the discretion under subsection 152-80(3) of the ITAA 1997 to allow an extension of the two-year period. The Commissioner has not considered whether the Deceased would have met the conditions required to apply the small business CGT concessions. Further information on 'small business CGT concessions' can be found on our website by searching QC 22655.
This ruling applies for the following period:
DD MM YYYY
The scheme commences on:
DD MM YYYY
Relevant facts and circumstances
On DD MM YYYY, the Deceased passed away.
The Deceased solely purchased the property on DD MM YYYY.
The Deceased used the property in their small business up until the date of death.
The Deceased had children.
The Deceased had a will made on DD MM YYYY
Probate was granted on DD MM YYYY.
On DD MM YYYY, the property was transferred to the children as tenants in common as beneficiaries of the estate.
There was a delay in the sale of the property due to the following reasons:
• One of the children resided overseas which prolonged the required liaising, correspondence, and paperwork to administer the will and sell the property.
• It was recommended by the real estate agent to sell the property via auction however an auction was difficult to organise (the required parties) and repeatedly rescheduled due to COVID-19 travel restrictions and social distancing guidelines.
• The granting of probate was delayed due to the assets of the Deceased requiring valuation and COVID-19 restrictions preventing travel delaying those valuations.
• On DD MM YYYY, the property was sold at auction for $X.
The Deceased would have met the conditions to apply the CGT small business concessions, if the property had been disposed of immediately before death.
Relevant legislative provisions
Income Tax Assessment Act 1997 subsection 152-80 (3)