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Edited version of private advice
Authorisation Number: 1052090667064
Date of advice: 1 March 2023
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 located at the property and disregard the capital gain or 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:
Year ended 30 June 20xx.
The scheme commenced on:
xx May 20xx
Relevant facts and circumstances
The deceased passed away on xx xxxx 20xx.
The deceased acquired the property after 20 September 1985.
The property was the main residence of the deceased throughout their ownership period.
The property has never been used to produce assessable income.
Probate was granted on xx xxxx 20xx.
The property was occupied by the deceased's spouse from the time of the deceased's passing until July 20xx under a right to occupy contained in the deceased's will.
After the deceased's spouse moved out of the property, the executor was prevented from disposing of the property because a transfer had been prepared in error, creating a life interest in the property for one of the beneficiaries.
The issues with the title could not be rectified administratively and the executor sought a court order to cancel the transfer that had been made in error.
On xx March 20xx, the Court issued an order under the relevant provision of the real property legislation in the applicable State or Territory cancelling the erroneous transfer of title.
The property was registered in the name of the executor on xx April 20xx. You entered into a contract to sell the property on xx xxxx 20xx with settlement occurring on xx xxxx 20xx.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195.