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Edited version of private advice
Authorisation Number: 1051985679600
Date of advice: 25 May 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 'QC 66057' on ato.gov.au.
This ruling applies for the following period:
Year ended 30 June 20XX
The scheme commences on:
1 July 20XX
Relevant facts and circumstances
The deceased passed away on DD/MM/YYYY.
The deceased acquired the dwelling after 20 September 1985.
The dwelling was the main residence of the deceased and not used for income producing purposes.
The land adjacent to the dwelling is less than two hectares in area.
The deceased passed away intestate leaving multiple potential beneficiaries under intestacy provisions including A and B.
A dispute arose regarding the entitlement of certain beneficiaries under intestacy provisions.
Mediation commenced due to the dispute and an agreement was reached on DD/MM/YYYY whereby A and B signed a terms of settlement where the dwelling was going to be transferred to them in specie.
The parties obtained court orders on DD/MM/YYYY in which it was noted that an independent administrator would apply for a grant and the orders were authenticated on DD/MM/YYYY.
Letters of administration were granted to the administrator on DD/MM/YYYY.
B passed away on DD/MM/YYYY.
After B's death, A and B's Legal Personal Representative agreed to sell the dwelling.
A passed away on DD/MM/YYYY.
The agreement to sell the dwelling needed to be refreshed after A passed away however B's Legal Personal Representative had also passed away at that stage.
The passing of A and B caused the in specie transfer to not take place and instead the dwelling was listed for sale by the administrator.
The dwelling was sold on DD/MM/YYYY.
Settlement occurred on DD/MM/YYYY.
Relevant legislative provisions
Income Tax Assessment Act 1997 subsection 118-195(1)