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Edited version of private advice
Authorisation Number: 1052123473821
Date of advice: 8 June 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 Property 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 XX/XX/20XX.
Year ending XX/XX/20XX.
The scheme commenced on:
XX/XX/20XX
Relevant facts and circumstances
The Deceased passed away on XX/XX/20XX.
At date of death, the Deceased owned the Property. The Property had been the main residence of the Deceased, was not used for income producing purposes and was less than 2 hectares.
The Deceased acquired the Property on XX/XX/19XX.
On XX/XX/20XX, probate of the will was granted to the Executors. Several factors contributed to the delay in obtaining probate including:
• An anticipated legal challenge against the estate.
• Difficulties in preparing an inventory of possessions.
• The proximity of the Property vis-à-vis the Executors.
Following probate being granted, the Executors attended to the complex tax affairs of the Deceased. During this time, a parent of one of the Executors was admitted to hospital and shortly thereafter, passed away.
On XX/XX/20XX, title to the Property was transmitted to the beneficiaries of the estate as tenants in common in equal shares.
From XX/20XX to XX/20XX, the Executors attended to the administration and disposition of the Deceased's possessions.
In XX/20XX, the Executors engaged a real estate agent and in XX/20XX, the Property was listed for sale.
On XX/XX/20XX, a contract was entered into for the sale of the Property with settlement occurring on XX/XX/20XX.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118 - 195