Edited version of private advice

Authorisation Number: 1052020799779

Date of advice: 19 August 2022

Ruling

Subject: CGT - extensions to the 2-year ownership period

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 the dwelling to XXXX?

Answer

Yes. Having considered your circumstances and the relevant factors, the Commissioner will extend the two-year period to dispose of the dwelling to XXXX. 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 in the 20XX income year.

The property was purchased by the deceased pre-CGT.

The property was the deceased's main residence for the whole of their ownership period.

The property was never used to produce income.

The property was less than 2 hectares.

Probate was granted in July XXXX.

The property was not sold until XX February XXXX.

The deceased's children were named as executors of their will.

The reasons for the delay in selling the property is as follows:

•         One of the executors refused to move out of the house.

•         The other executor went to court to have them removed as executor so they could move forward with the administration of the estate.

•         Many attempts were made to remove the former executor from the house.

•         Covid meant that they were not able to be evicted from the house.

Orders were drawn up for the former executor to be removed and approximately six years after the date of death this occurred, and the property could be sold.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 118-195