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Edited version of private advice
Authorisation Number: 1052085155097
Date of advice: 10 February 2023
Ruling
Subject: CGT - Commissioner's discretion
Question
Will the Commissioner exercise the discretion to allow an extension for you to dispose of your ownership interest in the dwelling and disregard the capital gain or capital loss you made 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 ato.gov.au for 'QC 66057'.
This private 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.
The deceased owned a property. The property was acquired on XX XXX XXXX and it has never been used for income producing purposes during the deceased's ownership. The property was the deceased's main residence.
The property has not been used for income producing purposes since the deceased died.
The property was located on less than two hectares of land.
The deceased's will names an Executor and Trustee.
One of the beneficiaries had a significant disability. This beneficiary advised the Executor that they wished to purchase the other beneficiary's share in the property from the Estate.
It was decided by the Trustee that a QCAT assessment would be necessary for an accommodation decision maker to be appointed to consider the purchase of the property.
A QCAT Hearing of the application was held which appointed a formal accommodation decision maker.
The appointed decision maker advised the Trustee they made the accommodation decision to support the purchase of the property from the Estate.
An offer to purchase was made on behalf of the supported beneficiary.
The beneficiary had been residing at the property for some time and died while residing in the property.
The property was then listed for sale. The sale Contract was signed and settlement occurred.
The property sale was complicated due to the exceptional circumstances outside the control of the Trustee. The property could not be placed on the open market until an Accommodation Guardian was appointed and full consideration had been given to the capability of selling the property to one of the beneficiaries.
As soon as the accommodation Guardian advised they made the decision to support the purchase of the property from the Estate an offer to purchase was made on behalf of the beneficiary. Unfortunately, the beneficiary passed away shortly after the offer was made.
The property was listed for sale as soon as was practicable due to circumstances outside of the control of the executor. The property was listed for sale. A Sale Contract was signed with Settlement occurring approximately X years after the deceased's date of death.
Relevant legislative provisions
Income Tax Assessment Act 1997 subsection 118-195(1)