Edited version of private advice

Authorisation Number: 1052171550815

Date of advice: 21 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 period:

Year ended 30 June 20YY

The scheme commenced on:

1 July 20YY

Relevant facts and circumstances

The deceased passed away on DD MM CCYY.

The dwelling is located at XXXX (the property).

The deceased acquired the property before 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 is situated on less than two hectares of land.

A caveat was filed, which resulted in any future probate applications being unable to proceed.

Between MM 20YY and MM 20YY multiple attempts were made to have the caveat removed.

The caveat was withdrawn on DD MM 20YY.

Probate was granted on DD MM 20YY.

COVID-19 restrictions meant the administrator was unable to travel to the property to prepare it for sale for a period.

A contract to sell the property was entered into on DD MM 20YY with settlement occurring on DD MM 20YY.

The property was never used for income producing purposes.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 118-195