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Edited version of private advice
Authorisation Number: 1052073831939
Date of advice: 22 December 2022
Ruling
Subject: Commissioner's discretion - deceased estates
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 you make on the disposal?
Answer
Yes. Having considered your circumstances and the relevant factors, the Commissioner will apply his discretion and 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 periods:
Year ended 30 June 20XX
The scheme commences on:
1 July 20XX
Relevant facts and circumstances
the deceased passed away in 20XX.
The deceased owned a property which was their main residence.
The executor was aware that they had a time period of two years from the date of death to dispose of the property.
Accordingly, the executor had developed, and was implementing, a worked timeline to prepare the property for sale, to fall inside the two-year window.
Covid lockdowns began which was the start of a two-year period of lockdowns which meant you were prevented from attending the property for a total of 284 days.
At the end of each lockdown the executor had no idea if or when, nor how suddenly, they would be locked down again. This made confidently planning and implementing the sale of the property, in a post lockdown environment, extremely difficult.
The executor made many genuine efforts to return to the job of getting the house on the market, only to have the progress thwarted by the next lockdown. These were always unexpected and, in each case, meant that a time frame that they were working to was always never met.
During the times between lockdowns, there were other Covid-related factors that affected the progress of the getting the property on the market. This included having to self-isolate when they were deemed close contacts of covid positive cases, having to provide care to covid positive family members and close friends, and recovering from significant reactions to Covid vaccinations and booster shots.
Once the final lockdown was lifted works resumed to prepare the property for sale.
The executor's sibling and beneficiary to the estate, who was an integral part of the proceedings, suffered a significant health episode which resulted in surgery.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195