Edited version of private advice

Authorisation Number: 1052121478542

Date of advice: 29 May 2023

Ruling

Subject: Commissioner's discretion - deceased estate

Question

Will the Commissioner exercise the 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 ended 30 June 202X

The scheme commenced on:

1 July 202X

Relevant facts and circumstances

The deceased passed away on XX/XX/20XX leaving a will (the Will).

As at the date of death, the Deceased owned a property at XXX (the Property) which was their main residence.

The deceased appointed XXX as Executor of the Will (the Executor).

On XX/XX/20XX, the Executor received the sealed Grant of Probate.

On XX/XX/20XX, a family maintenance claim was made in the Supreme Court, against the Estate, seeking further provision.

The family maintenance claim was settled a couple of years later on XX/XX/20XX, and as part of the Terms of Settlement, the Property was to be placed on the market.

A contract on the Property was signed a few months later on XX/XX/20XX, with settlement occurring on XX/XX/20XX.

At all material times, the Property was not used for producing assessable income.

The Property is less than 2 hectares in size.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 118-195