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Edited version of private advice
Authorisation Number: 1051998935906
Date of advice: 28 June 2022
Ruling
Subject: Commissioner's discretion - inherited property
Question 1
Will the Commissioner exercise the discretion to allow an extension of time for you to dispose of your pre-CGT 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'.
Question 2
Will the Commissioner exercise the discretion to allow an extension of time for you to dispose of your post-CGT 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 commenced on:
1 July 20XX
Relevant facts and circumstances
At some time before 1985, the deceased and their spouse, as joint tenants bought a property (pre-CGT ownership interest). It was the deceased's main residence until they moved into a nursing home.
At some time after 1985, the deceased's spouse passed away and the deceased acquired their 50% ownership interest (post-CGT ownership interest).
Later, the deceased executed a will (Will A) and then another will (Will B) which revoked Will A.
Just before the deceased moved into a nursing home, the house was rented out and was tenanted for several years after the deceased passed away.
A short time after moving into a nursing home, the deceased passed away.
Later, the deceased's relative, a named beneficiary in Will A (not Will B) lodged a Caveat over the deceased's estate at the Probate Registry of the Court.
The Probate Registry of the Court issued a Warning to Caveat to the deceased's relative at the instance of one of the executors of Will B (the executor).
Later, the deceased's relative entered an Appearance to Warning in the Court.
Later, the executor filed a Summons with the Court seeking a Grant of Probate of Will B and the Caveat be removed.
Several years later, the Court ordered the Caveat be discontinued.
Later, the Court granted probate of Will B to the executor.
The property was sold and settled a short time later.
Assumption
The executor, on behalf of the deceased, chose to continue to treat the property as the deceased's main residence when they moved into a nursing home
Relevant legislative provisions
Income Tax Assessment Act 1997 Section 118-195
Income Tax Assessment Act 1997 Section 118-200