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Edited version of private advice
Authorisation Number: 1052003344301
Date of advice: 19 July 2022
Ruling
Subject: Commissioner's discretion - deceased estate
Question
Will the Commissioner exercise his discretion under section 118-195 of the Income Tax Assessment Act 1997 (ITAA 1997) to extend the two-year period to dispose of your XX% ownership interest in the dwelling?
Answer
Yes.
Having considered your circumstances and the relevant factors, the Commissioner will extend the two-year period to dispose of the XX% ownership interest in the dwelling. Further information about this 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 XXXX.
The deceased acquired the dwelling (the Property) with the surviving spouse on XXXX.
The Property was purchased as tenants in common.
The Property is less than 2 hectares.
The Property was the deceased's main residence just before the death and the Property was not used to produce assessable income.
The deceased's last Will appointed the surviving spouse as joint executor of the estate; however, the surviving spouse was not a beneficiary of the estate.
The Will stated that the deceased gave real and personal estate to the trustees of the estate upon trust with power to collect, sell and convert to pay all debts, funeral and administration expenses.
On XXXX, the surviving spouse renounced the appointment as joint executor of the estate of the deceased.
Probate was granted.
On XXXX, the surviving spouse filed a claim against the executor of the estate in the Court, seeking that adequate provision be made for their proper maintenance and support from the estate.
On XXXX, the surviving spouse entered a Deed of Settlement, Release, Discharge and Indemnity with the executor and the beneficiaries of the estate (the Deed).
The Deed allowed the surviving spouse to stay at the Property.
On XXXX, the surviving spouse entered a Deed of Termination and Release with the executor and the beneficiaries of the estate in which it was agreed to sell the Property.
The Property was sold with settlement occurring on XXXX.
Relevant legislative provisions
Income Tax Assessment Act 1997 Section 118-195