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Edited version of private advice
Authorisation Number: 1051984916055
Date of advice: 19 May 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 and relevant factors, 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 question requested upon application which is whether the Commissioner can exercise discretion under subsection 152-80(3) of the ITAA 1997 to allow an extension of the two-year period. Therefore, the Commissioner has not considered whether the Deceased was in fact entitled to 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
You were a beneficiary of a will, who inherited alongside two others, an equal share in land which was purchased after 20 September 1985 which was used earn business income up until the death of the deceased.
There was a delay in having the land sold as:
• One of the beneficiaries 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.
• To have probate granted, the assets of the deceased had to be valued however this was a long process due to the extensive assets the Deceased owned to operate the small business and COVID-19 restrictions preventing travel.
The land was sold at auction over 18 months after the date of title transfer.
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)