| Disclaimer You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4. |
Edited version of private advice
Authorisation Number: 1052161550594
Date of advice: 18 September 2023
Ruling
Subject: Commissioner's discretion - deceased estate
Question
Will the Commissioner exercise the discretion in section 118-195 of the Income Tax Assessment Act 1997 to extend the two-year period and disregard any capital gain made on the disposal of the property?
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 XX June 20XX
The scheme commenced on:
XX July 20XX
Relevant facts and circumstances
The deceased passed away on DD MM 19YY.
As at the date of death, the deceased owned the property and lived in it as their main residence.
The property was on less than 2 hectares of land.
The deceased left a will granting a life interest in her estate to her Person A and Person B and providing that upon the death of Person A and Person B, the estate was to be divided equally between the beneficiaries.
Person A and Person B lived at the property as their main residence.
Person A passed away on DD MM 20YY and Person B passed away on DD MM 20YY.
The named executor's of the deceased Will had all passed away and as a result, the administrators needed to submit an application to the court to obtain a grant of letters of administration with the will debonis non.
On DD MM 20YY the application to obtain the letters of administration was lodged and on DD MM 20YY the letters of administration were issued.
There were several issues with the property that the administrators needed to attend to including:
1. Roof was leaking in several rooms
2. Floorboards were rotted with holes in the floor
3. House was infested with mice/rats and pigeons
4. Salt damp and cracking on walls
5. Garden was filled with knee-high grass
The administrators also needed to arrange for the contents and personal affects of Person A and Person B to be removed or donated. This was delayed by the fact that Person B left all his belongings to an organisation who were initially unresponsive.
A real estate agent arranged inspections of the property in YY and MM 2023.
The contract of sale of the property was signed on DD MM 20YY with settlement occurring on DD MM 20YY.
The property was never used for income producing purposes.
The beneficiaries are all Australian residents for tax purposes.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195