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Edited version of private advice
Authorisation Number: 1052110959416
Date of advice: 4 May 2023
Ruling
Subject: Commissioner's discretion - deceased estate
Question
Will the Commissioner exercise their discretion under section 118 - 195 of the Income Tax Assessment Act 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 ruling applies for the following period:
Year ending 30 June 20XX.
The scheme commenced on:
X XX 20XX
Relevant facts and circumstances
The deceased passed away on the X XXX 20XX.
The deceased had a will dated XX XXX 20XX which appointed X executors of the estate.
Probate of the will was granted on XX XXX 20XX to the executors named.
At date of death, the deceased owned a property.
The property was the deceased's main residence.
The property was not used to produce assessable income.
The deceased acquired the property on the XX XXX 19XX.
Following the deceased's passing, the property was owned by the named executors of the will until XX XXX 20XX, when the sale of the property was settled.
A number of factors contributed to a delay in the sale of the property including:
• One of the beneficiaries of the will challenged the estate for further provision with several hearings being held and rescheduled due to non-appearances and administrative purposes
• One of the executors was a non-Australian resident and required a FRCGW certificate
• Several beneficiaries named in the deceased's will were non-Australian residents for specific gifts requiring further research to be conducted to determine whether gifts were a CGT asset
A settlement was reached on the XX XXX 20XX between the parties.
A notice of discontinuance was filed in the State Supreme Court on the XX XXX 20XX ceasing all legal actions against the estate.
A sole agency agreement with the real estate agent was executed with the executors subsequently allowing the property to be listed and published for auction.
After the legal proceedings were finalised, the sale of the property was settled.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118 - 195