Edited version of private advice

Authorisation Number: 1052130406207

Date of advice: 19 June 2023

Ruling

Subject: CGT and deceased estate

Question

Will the Commissioner use his discretion to extend the two-year time period in section 118-195(1) (2b) of the Income Tax Assessment Act 1997 (ITAA 1997) and disregard any capital gains made on the disposal of the property in full for the Estate?

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 20XX

The scheme commenced on:

1 July 20XX

Relevant facts and circumstances

The Property was purchased by the deceased on XX XX 19XX.

The Property is more than 2 hectares.

The deceased passed away on XX XX 20XX.

The Property was the deceased's main residence at the time of death and never used to produce income.

Probate was granted on XX XX 20XX.

A delay in obtaining probate was due to:

-       one of the beneficiaries experiencing ongoing illness that required medical treatment

-       the other beneficiary has a disability that restricts communication.

After granting of probate additional brief delays were due to a boundary readjustment and sewer repair on the Property, exacerbated by COVID-19 lockdown periods, and a short hospitalisation of one of the beneficiaries.

One of the beneficiaries resided in the dwelling until its sale.

A contract for sale of the Property was entered on XX XX 20XX and settlement occurred on XX XX 20XX.

Relevant legislative provisions

Income Tax Assessment Act 1997 Section 118-115

Income Tax Assessment Act 1997 Section 118-120

Income Tax Assessment Act 1997 section 118-195

Income Tax Assessment Act 1997 section 118-200

Income Tax Assessment Act 1997 section 128-20

Taxation Determination TD 1999/67

ATO Interpretive Decision ATO ID 2006/34