Edited version of private advice

Authorisation Number: 1052040260764

Date of advice: 14 October 2022

Ruling

Subject: Commissioner's discretion - deceased estate

Question

Will the Commissioner allow an extension of time for the Executors to dispose of their ownership interest in the dwelling and disregard the capital gain or loss you make on the disposal?

Answer

Yes.

Having considered your circumstances and the relevant factors, the Commissioner will allow an extension of time. Further information about this discretion can be found by searching 'QC 66057' on ato.gov.au

This ruling applies for the following period:

Year ending 30 June 20XX

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

The deceased and their spouse were registered as joint property owners of the property before 1985.

The spouse of the deceased died several years ago and by law their half share in the property vested by the way of survivorship.

The land the dwelling was situated on was less than 2 hectares.

The dwelling was never rented out and was occupied by the deceased as their main residence during their ownership period until the date of their death in 20XX.

The deceased left a valid will and probate was granted to the executors appointed under the will.

The executors were unable to organise the sale of the property within the two-year period due to COVID restrictions.

When they were able to inspect the property, asbestos was discovered and this had to be removed professionally.

The dwelling was prepared for sale and a contract for sale was entered into approximately 26 months after the date of death.

The property was vacant from the time of death until the property was sold.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 118-195