| 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: 1052215513147
Date of advice: 14 February 2024
Ruling
Subject:CGT - deceased estate - Commissioner's discretion
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
1 July 20XX
The scheme commenced on:
1 July 20XX
Relevant facts and circumstances
The Deceased passed away intestate on DD MM 20XX.
As at the date of death the Deceased owned the Property, which had been acquired prior to 20 September 1985 and was less than 2 hectares in size.
The Deceased had X children who lived in Australia and overseas. Following their death, the Deceased's family decided that a mourning period would be observed during which, no decisions would be made about the Property.
During MM 20XX and MM 20XX, family conferences were held via Skype, but a decision could not be made about the Property. The family decided to meet in person in Country X, during the Easter holidays 20XX. It was hoped that meeting in Country X face-to-face may assist the family in reaching an agreement and also provide them with the opportunity to seek counsel from senior members of the family and religious leaders.
In DD 20XX, worldwide travel restrictions in response to the COVID pandemic forced the family to postpone the meeting in Country X.
In MM 20XX, the family held another Skype meeting where it was agreed to sell the Property. A real estate agent was appointed to market and sell the Property. On DD MM 20XX, solicitors were instructed to prepare and lodge the application for Letters of Administration.
On or around DD MM 20XX, the application was lodged with the Supreme Court of the relevant state. Between DDMM 20XX and DD MM 20XX, several requisitions were issued by the Court which required responses or documentation from beneficiaries located overseas. The process was further complicated by the passing of one of the intended beneficiaries.
On DD MM 20XX, letters of administration were granted.
On DD MM 20XX, the Property was transferred to the Administrators.
The Property was sold on DD MM 20XX and settled on DD MM 20XX.
The Property was not used to produce assessable income at any time after the deceased passed away.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195