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Edited version of private advice
Authorisation Number: 1052193623133
Date of advice: 16 November 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 2021
Year ended 30 June 2022
The scheme commenced on:
1 July 2020
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.
Probate was granted on DD MM 20YY.
On DD MM 20YY proceedings commenced in the Supreme Court of the state of the deceased on behalf of a child of the deceased.
On DD MM 20YY an application was made to the Supreme Court of the state of the deceased for the appointment of an independent administrator.
On DD MM 20YY the Grant of Probate was revoked by the Supreme Court, and a Grant of Letters of Administration were granted on DD MM 20YY in favour of an independent administrator.
On DD MM 20YY the mediation for the dispute took place and a settlement was agreed upon. The settlement required court approval before the property could be sold.
On DD MM 20YY the court approved the settlement. Consent orders settling the proceedings were made and the property was allowed to be sold.
Between the Consent orders being issued and the settlement of the property, an insurance claim was submitted for claims for damages to the property.
The property was sold at auction on DD MM 20YY to some of the beneficiaries, with the other beneficiaries having their share purchased.
Settlement occurred on DD MM 20YY.
The property was not used to produce assessable income between the date the deceased passed away and the date it was sold.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195