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Edited version of private advice
Authorisation Number: 1052076063822
Date of advice: 10 January 2023
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 the dwelling to the relevant date?
Answer
Yes. Having considered your circumstances and the relevant factors, the Commissioner will extend the two-year period to dispose of the dwelling to the relevant date. 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 passed away a number of decades ago.
The property was the deceased's main residence when they passed away.
The property was purchased by the deceased prior to 1985.
The property was never used to produce income.
The property was less than 2 hectares.
Probate was granted several weeks after the date of death.
The deceased's child (the life tenant) had a right under the will to live in the property until they passed away or surrendered the life tenancy.
The life tenant passed away a couple of years ago.
The life tenant's child lived with the life tenant to care for them.
The life tenant's child provided 7 day a week 24 hour care until the life tenant passed away.
After the life tenant passed away their child requested that they could remain in the property until they secured a rental property.
Due to covid and the limited rental properties this proved very difficult.
The life tenant's child attempted to secure a property across a large number of suburbs.
They researched properties across a number of real estate agents and viewed properties in their price range several times a week.
The life tenant's child was forced to give their pet away in order to try and secure a property as it is near impossible to secure a property with a pet.
At this point in time the life tenant's child is living in a hotel and has still not been able to secure a rental property.
The life tenant's child remained in the property until a few months prior to settlement.
The property settled several months ago.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195