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Edited version of private advice
Authorisation Number: 1052126281245
Date of advice: 6 June 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 disposal?
Answer
Yes.
The period of time that has passed between the death of the deceased and the property being disposed of is not a factor favourable to exercising the Commissioner's discretion. However, the delay was due to the declining cognitive function of the executor which was out of your control. Having considered your circumstances in their entirety 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 YYYY.
The scheme commenced on:
DD/MM/YYYY
Relevant facts and circumstances
On DD/MM/YYYY the deceased passed away.
The deceased acquired the property pre-September 1985.
The property was the main residence of the deceased and was not used to produce assessable income.
The property was situated on less than two hectares of land.
The Will appointed an executor for the estate.
The executor suffered from dementia at the time of the deceased passing.
Due to the executor's medical condition the deceased's Will was not acted upon.
In MM/YYYY the executor entered a care facility.
On DD/MM/YYYY a power of attorney was appointed for the executor.
On DD/MM/YYYY after locating the Will, the power of attorney took the document to Lawyers.
On DD/MM/YYYY application for grant of letters of administration was lodged in the Supreme Court.
On DD/MM/YYYY probate was granted.
On DD/MM/YYYY the property was under contract.
On DD/MM/YYYYY the property settled.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195