Edited version of private advice

Authorisation Number: 1051971105613

Date of advice: 14 April 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 dwelling 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:

1 July 2021

Relevant facts and circumstances

The deceased passed away on xx/xx/xxxx.

The property was the main residence of the deceased throughout their ownership period.

The deceased moved into aged care in xx/xxxx.

The property was rented out from xxxx.

Probate was granted on xx/xx/xxxx.

The executor made a choice to treat the property as the deceased's main residence for the period from xx/xx/xxxx to xx/xx/xxxx, being a period of less than 6 years.

On xx/xx/xxxx, person A commenced proceedings for a greater share of the estate.

On xx/xx/xxxx, the Supreme Court gave approval to settlement of the proceedings, approximately 9 months after the proceedings commenced.

Subsequently, other factors also delayed the sale of the property.

The property sold at auction on xx/xx/xxxx with settlement occurring on xx/xx/xxxx, approximately 6 months after the expiration of the two-year period.

Relevant legislative provisions

Income Tax Assessment Act 1997 subsection 118-195(1)

Income Tax Assessment Act 1997 section 118-145