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Edited version of private advice
Authorisation Number: 1051968089379
Date of advice: 5 April 2022
Ruling
Subject: CGT - Commissioner's discretion
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 is able to 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 ending 30 June 20XX
The scheme commences on
1 July 20XX
Relevant facts and circumstances
The deceased acquired a dwelling (the dwelling).
The deceased passed away on XX XXX 20XX.
The dwelling is located on land less than 2 hectares in size and the dwelling was not used to produce assessable income prior to the deceased passing away.
Executors of the will included (person A), (person B), and another person.
Probate was granted on XX XXX 20XX.
According to the Will, person A and person B were to inherit the family home being the dwelling while siblings shared in other investments/assets.
In XX 20XX a dispute arose from a listed beneficiary in relation to allocation of estate assets.
The executors were forced to delay proceeding with the administration of the estate until the dispute was resolved.
The settlement agent was advised to hold off proceeding with the transfer of property to person A and person B.
On XX XX 20XX the dispute was resolved enabling executors to proceed.
On XX XX 20XX, the settlement agent was advised to proceed with the transfer.
On XX XX 20XX, the taxpayers were made aware of a discrepancy with person B'S name and its mismatch to the name on probate.
Various documents and verifications were actioned to overcome this issue.
On XX XX 20XX an application was made to action the transfer.
On XX XX 20XX an update from the settlement agent was received stating that the transfer is considered a "complex dealing" and was not finalised.
Land title released on XX XX 20XX.
The property was lived in by person A and person B while being prepared for sale.
An agent was engaged to sell the property in xx 20xx.
An offer was accepted on XX XX 20XX, a few weeks after the expiry of the two-year period and settlement occurred a couple of months after the expiry of the two-year period.
Relevant legislative provisions
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