| 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: 1052199816263
Date of advice: 21 December 2023
Ruling
Subject: Commissioners discretion - extension of time
Question
Will the Commissioner exercise the discretion under section 118-195 of the Income Tax Assessment Act 1997 (ITAA 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 private ruling applies for the following period:
Year ending X June 20XX.
The scheme commenced on:
X July 20XX.
Relevant facts and circumstances
On X February 20XX, the Deceased passed away.
As at the date of death, the Deceased owned the Property.
The Property was less than 2 hectares and had been used as the main residence of the Deceased since it was acquired.
As at the date of death, the Deceased was only in contact with one family member being the Beneficiary. The Deceased had previously told the Beneficiary that they had a Will that bequeathed the residue of their estate to them.
Given the Beneficiary lived overseas and had no contacts in Australia, it was not until June 20XX that they were able to confirm the deceased had passed away. It was at this time that they engaged a Solicitor for assistance with administering the estate.
In June 20XX, the Solicitor commenced the process of attempting to find the Deceased's Will and discovered that the Deceased's neighbours had applied for letters of administration. The Solicitor subsequently lodged a caveat to prevent the grant.
In December 20XX, the Solicitor obtained a photocopy of the Will which appointed two acquaintances as the Executors of the estate and confirmed the Beneficiaries understanding that they were the sole beneficiary of the residue of the estate.
In March 20XX, the Executors lodged an application for a grant of probate.
In April 20XX, the court issued a requisition notice on the basis that the original Will could not be located. The requisition required the Executors to obtain consents or file affidavits of service on all persons who would be affected by the grant, which included several relatives located overseas.
In December 20XX, the Executors provided the required documentation to the court in response to the requisition notice which resulted in probate being granted on X April 20XX.
On X May 20XX, a real estate agency was engaged to sell the Property.
On X August 20XX, the Executors sold the Property.
The Property settled in September 20XX.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195