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Edited version of private advice
Authorisation Number: 1052109756394
Date of advice: 21 April 2023
Ruling
Subject: CGT - section 118-195(1) of ITAA 1997
Question 1
Was the deceased an 'excluded foreign person' at the time of his death?
Answer
No.
The deceased was not an excluded foreign resident just before the date of death as the last period of being an Australian resident for tax purposes ended on 12 March 20XX.
Question 2
Was the property the deceased's main residence at the time of his death?
Answer
Yes.
At the time of his death, the property was the deceased's main residence.
In these circumstances, the requirements of column 2 and 3 of the table in subsection 118-195(1)(b) of the Income Tax Assessment Act 1997 (ITAA 1997) and the 6-year period required by subsection 118-110(4)(b) of theITAA 1997 are met. You can disregard a capital gain or capital loss from the sale of the dwelling.
Relevant facts and circumstances
The deceased passed away in 20XX.
Letters of Administration were granted to the Trustee an Australian resident for tax purposes.
At the DOD the deceased owned the property.
The property had been the deceased's main residence and was not being used for income producing purposes at the DOD.
The property is of a size less than two hectares.
The deceased owned no other real property in the country of residence.
The deceased also owned another property in Australia at their DOD.
The deceased acquired the property in 20XX and lived in it as a main residence until around 20XX/20XX.
In or around 20XX/20XX the deceased moved overseas.
Returning to Australia intermittently, the deceased stayed in the property.
Later, and most recently there was an extended period of main residence in the 20XX income year.
When the deceased was not in Australia the property, although rented intermittently, was vacant.
The property sold and settled in less than two years after the deceased's death.
At their DOD, the deceased resided in another country.
Nether the deceased or his wife owned any property in that country.
The deceased and his family lived in a leased property.
The deceased has family in Australia.
The deceased paid a home loan with overseas earnings.
The deceased operated a private company which was registered for GST in 20XX the registration was cancelled in 20XX.
The deceased declared income in Australia in the 20XX income year as a tax resident.
Travel records show the deceased was in Australia continuously for more than 183 consecutive days between 20XX and 20XX and was an Australian resident for tax purposes for this period.
Relevant legislative provisions
Income Tax Assessment Act 1997 Section 118-195
Income Tax Assessment Act 1997 Subsection 118-110(4)