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Edited version of private advice
Authorisation Number: 1052089898468
Date of advice: 23 March 2023
Ruling
Subject: Commissioner's discretion - deceased estate
Question
Will the Commissioner exercise the discretion under section 118-195 of ITAA 1997 to allow an extension of time 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 the Commissioner's discretion can be found by searching ato.gov.au for 'QC 66057'.
This private ruling applies for the following period
Year ended 30 June 20XX
The scheme commences on:
1 July 20XX
Relevant facts
The deceased passed away on XX XX 20XX.
The deceased acquired a dwelling after 20 September 1985. (The dwelling)
The dwelling was the main residence of the deceased and was not used to produce assessable income.
The deceased vacated the dwelling in 20XX and resided in an aged care facility.
The deceased passed away on XX XX 20XX.
The land area is less than 2 hectares in size.
The will of the deceased named the executor as a child of the deceased (Executor).
The named executor is a non-resident and was unable to travel to Australia due to Covid-19 restrictions in place at the time and provided instructions remotely.
The executor appointed person A as their attorney on XX XX 20XX to obtain letters of administration of the deceased's will.
The application for the grant was complicated and delayed as the original will had been damaged after the death of the deceased. The attorney was required to provide additional evidence and attend to requisitions by the Court before the grant was made. The application was submitted on XX XX 20XX.
The Court issued a grant of letters of administration of the deceased's will on XX XX 20XX.
The dwelling was listed for sale as soon as practicable once the grant was received with the listing date being XX XX 20XX.
A contract for the sale occurred on XX XX 20XX.
Settlement took place a short time later.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195
Income Tax Assessment Act 1997 subsection 118-120(3)