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Edited version of private advice
Authorisation Number: 1052097986182
Date of advice: 16 March 2023
Ruling
Subject: Deceased estates - 2 year discretion
Question
Will the Commissioner allow an extension of time for you to dispose of your ownership interest in the property and disregard the capital gain or loss you make on the disposal of up to 2 hectares?
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:
Period end DD MM 20YY
The scheme commenced on:
DD MM 20YY
Relevant facts and circumstances
The deceased passed away on DD MM 20YY.
The dwelling is located at a Place (the property).
The deceased acquired the property after 20 September 1985.
The property was the main residence of the deceased just before they passed away and was not used to produce assessable income.
The property was situated on X hectares of land.
Probate was granted on DD MM 20YY.
Before you could sell the residence a Testators Family Maintenance (TFM) claim was filed against the Estate preventing the sale and settlement of the Estate under the Will.
While the TFM claim was proceeding, you secured a short term tenant for the residence.
On DD MM 20YY the TFM claim was settled and the associated documentation was filed with the Court in early MM 20YY. You immediately took steps to sell the property at the end of the lease period which was to be at the end of MM 20YY.
However, Covid-19 restrictions imposed in MM 20YY prevented you from evicting the tenant. These restrictions were lifted in MM 20YY. The tenant voluntarily vacated just prior to the lifting of the Covid-19 restrictions and the property was immediately placed on the market for sale.
You entered into a contract to sell the property on DD MM 20YY with settlement occurring on DD MM 20YY.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195