Edited version of private advice

Authorisation Number: 1052167722958

Date of advice: 18 September 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 the ownership interest in the Property and disregard the capital gain or capital loss made on the disposal?

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:

Income year ended 30 June 20XX

The scheme commenced on:

1 July 20XX

Relevant facts and circumstances

The Deceased passed away on DD MM 20YY.

As at the date of death, the Deceased owned the Property.

The Property had been acquired by the Deceased prior to 20 September 1985.

The Property is a residential dwelling less than 2 hectares of land.

The Estate engaged solicitors to apply for probate in MM 20YY. The probate process was complicated by the fact that shortly after the Estate applied for a grant of probate, a hand-written informal Will of the Deceased was discovered. The solicitors for the Estate were required to prepare several affidavits in support of an application to admit the informal Will to probate. The application for probate was lodged on DD MM 20YY and an order for probate was granted on DD MM 20YY.

The Transmission Application for the Property was registered with the titles office on DD MM 20YY.

A contract for sale of the Property was signed DD MM 20YY with settlement occurring on DD MM 20YY.

The Property remained vacant until it was sold and was never used to produce income.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 118-195