Edited version of private advice

Authorisation Number: 1052139808701

Date of advice: 19 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 Property and disregard the capital gain you make on the disposal under section 118-195 of the Income Tax Assessment Act 1997?

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 private ruling applies for the following period:

Year ended XX 20XX.

The scheme commenced on:

X XX 20XX.

Relevant facts and circumstances

The deceased passed away in X 20XX.

The property is located at XX.

The deceased acquired the Property after 20 September 1985, and it was situated on less than 2 hectares of land.

The Property was the main residence of the deceased just before they passed away and was not used to produce assessable income at that time.

The will of the deceased could not be located until XX 20XX.

Probate was granted to you in XX 20XX.

At the time of death, your relative and their child had taken up residence at the Property.

You were not aware that this had occurred.

As executor, you did not consent to your relative and their child residing at the Property.

Your relative was not paying rent and no rental agreement, verbal or written, was in place.

Your relative refused to vacate the property when requested by you.

You assisted your relative in seeking alternative accommodation however these efforts were hampered when, between XX 20XX and XX 20XX, the State Government placed a moratorium on the eviction of tenants.

You and your spouse received death threats and threats of violence from your relative when requesting they vacate.

Real estate agents could not attend the Property as it was littered with drug related intravenous needles.

The estate was void of any funds to litigate and force the removal of your relative and their child from the Property, nor could it provide alternative accommodation to allow for the sale of the Property.

You sought legal representation to facilitate the removal of your relative.

After 12 months of legal negotiations, your relative agreed to vacate the Property.

You organised and paid for several skip bins to be delivered to the premises to assist your relative in vacating the Property.

No renovations or improvements were made to the Property between the date of death of the deceased and settlement of the Property.

The Property was placed on the market in XX 20XX, the day after your relative vacated the Property.

The Property settled in XX 20XX.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 118-195