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Edited version of private advice
Authorisation Number: 1052125465141
Date of advice: 2 June 2023
Ruling
Subject: CGT - small business concessions - extension of time to sell the deceased assets
Question
Will the Commissioner exercise his discretion under subsection 152-80(3) of the Income Tax Assessment Act 1997 (ITAA 1997) to extend the two-year time limit to sell the assets?
Answer
Yes. Having considered your circumstances including the complexities in administering the Estate, the impact of COVID-19 and the unexpected illness of a prospective purchaser, it is reasonable to allow an extension of time until the assets are sold.
We have limited our ruling to the question raised in your application being whether an extension of time will be granted. You advised that the deceased would have been eligible to apply the small business capital gains tax (CGT) concessions if the deceased had disposed of the property immediately prior to their death. The private ruling on whether an extension of time will be granted was issued on this basis, that is, the Commissioner did not consider the deceased's eligibility for the small business CGT concessions.
This ruling applies for the following period:
Year Ending 30 June 2022
The scheme commenced on:
1 July 2021
Relevant facts and circumstances
The deceased recently passed away.
The deceased purchased several assets that were used in their sole trader tourism business.
As at the date of death, the deceased was the sole owner of the assets.
The deceased became ill in the later stages of their life and family members A and family member B took over the management of the business.
Upon the deceased death, the apartments devolved to their Estate.
In acknowledgement of their assistance to the deceased during their period of illness, and in accordance with the deceased's express wishes, family members A and B were provided the first opportunity the acquire the assets.
However, after several months negotiations family members A and B ability were unable to raise the finance for the purchase due to the impacts on the industry of the COVID-19 pandemic at the time.
The Estate entered contract negotiations with another party. However, the contract was unable to proceed due to illness of the purchaser.
The assets were subsequently individually sold on the open market with the final sale completed just over two years after the deceased death.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 152-80