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Edited version of private advice
Authorisation Number: 1052169341835
Date of advice: 15 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 your ownership interest in the dwelling and disregard the capital gain or capital loss you 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 ruling applies for the following periods:
Year ended 30 June 20YY
Year ended 30 June 20YY
The scheme commenced on:
1 July 20YY
Relevant facts and circumstances
The deceased passed away on DD MM 20YY.
The dwelling is located at XXXX (the property).
The deceased acquired the property after 20 September 1985.
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 property was situated on less than two hectares of land.
The deceased did not leave a valid will and died intestate, and their parents and grandparents had all pre-deceased them. Evidence in the form of both birth and death certificates had to be given to the court. As the mother of the deceased was born overseas, a birth certificate could not be located. This took over a year, with an alternative document eventually being located and accepted by the court. Consent to administration was also needed to be obtained by extended family. Locating said family members also impacted the time to have probate granted.
Probate was granted on DD MM 20YY.
You were appointed the administrator.
You reside in the state of Victoria, and the property is located in another state.
From 31 March 2020, COVID-19 restrictions came into effect that included various border closures between the states.
You also require consistent medical procedures administered by a medical specialist. As a result, you are immunocompromised and require full time carer support.
The property was visited to be prepared for sale in early 20YY.
You entered into a contract to sell the property on DD MM 20YY with settlement occurring on DD MM 20YY.
The property was vacant from the deceased's death until its sale.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195