Edited version of private advice

Authorisation Number: 1052135032796

Date of advice: 12 July 2023

Ruling

Subject: Commissioner's discretion - deceased estate

Question

Will the Commissioner allow an extension of time for you to dispose of your ownership interest in the dwelling located at XXX (the Property) and disregard the capital gain or loss you make on the disposal?

Answer

Yes.

Having considered your circumstances and the relevant factors set out in the Practical Compliance Guideline PCG 2019/5, the Commissioner will allow an extension of time to dispose of your ownership interest in the property. Further information about the Commissioner's discretion can be found by searching ato.gov.au for 'QC 66057'.

This ruling applies for the following periods:

DD MM 20XX to DD MM 20XX.

The scheme commenced on:

DD MM 20XX

Relevant facts and circumstances

The Deceased passed away on or around DD MM 20XX.

As at the date of death:

1.    The Deceased owned the Property which had been acquired after 20 September 1985 and was situated on less than 2 hectares of land.

2.    The Property was the main residence of the Deceased and was not being used to produce assessable income before they died.

3.    The Deceased had two Wills, the first dated on or around unknown date in 20XX (Will 1) and the latter prepared but not executed on or around MM 20XX (Will 2). Will 1 appointed person A as sole executor and principal beneficiary. Will 2 appointed Person A as sole executor and sole beneficiary. A copy of Will 2 was provided.

On DD MM 20XX, a provisional death certificate was issued and the cause of death subject to coronial investigation. A Copy of the Death Certificate was provided.

On DD MM 20XX, the Coroner's Court made an open finding as to the cause of death.

On DD MM 20XX, the Coroner's Court issued a letter to Person A stating that the investigation was ongoing.

On DD MM 20XX, legal proceedings were commenced by Person A to have Will 2 declared an informal Will to probate. The application was defended by, Person B, Person C, Person D, Person E and Person F.

On DD MM 20XX, the Coroner's Court issued their final report.

On DD MM 20XX, the Supreme Court of State X issued orders declaring Will 2 as an Informal Will.

Details of the assets and liabilities of the Deceased's estate were provided.

The Property has been unoccupied since the Deceased passed away. The Property will be unoccupied until it is sold.

Probate has been granted.

The coronial investigation and legal challenges have been resolved and no further impediments exist to delay the sale of the Property.

The Executor (Person A) is undertaking the following repairs to the Property prior to it being listed for sale:

1.    Installation of a new front door (the front door currently does not open and close)

2.    Repairing a roof leak

3.    Fixing a broken gutter

4.    Tidying up the garden which is very overgrown

5.    General cleaning including carpet cleaning.

The Executor has made enquiries to various contractors and considers attending to the above will take approximately two to four weeks.

The Executor is currently considering appraisals from several real estate agents and will be selecting a real estate agent to sell the property shortly.

Assumptions

The property located at XXX will be sold as soon as practicable after Grant of Probate is issued and before the end of the period of the private ruling.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 118-195