| Disclaimer You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4. |
Edited version of private advice
Authorisation Number: 1052085584576
Date of advice: 9 February 2023
Ruling
Subject: CGT - deceased estates
Question
Will the Commissioner exercise the discretion under section 118-195 of the Income Tax Assessment Act 1997 to allow an extension of time for you to dispose of the pre-capital gains tax ownership interest in the dwelling you owned as trustee of the deceased estate 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 the Commissioner's discretion can be found by searching ato.gov.au for 'QC 66057'.
This ruling applies for the following period:
The income year ended 30 June 20XX
The scheme commenced on:
1 July 20XX
Relevant facts and circumstances
The deceased passed away on DD/MM/YYYY.
The deceased and their late spouse purchased the property before 20 September 1985.
A dwelling was built on the property before 20 September 1985.
The deceased's spouse passed away after 20 September 1985 and the deceased inherited their spouse's ownership interest in the property by survivorship.
The property was situated on less than two hectares of land.
The dwelling was not the deceased's main residence and was used to derive rental income at the time of their death.
Shortly after the deceased's death, the lease over the property was renewed for a period without the knowledge of the executor.
After the lease over the property expired, the tenant was issued a notice to leave. The tenant was uncooperative, and proceedings were commenced by the executor to have the tenant removed from the property.
The executor could not sell the property while tenanted, as the tenant was threatening and abusive to agents.
Following the tenant's eviction, it was discovered that the tenant had caused property damage which required resolution to allow safe inspection of the property.
The property was sold soon after the property damage was resolved.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195