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Edited version of private advice
Authorisation Number: 1052217493966
Date of advice: 21 February 2024
Ruling
Subject: Commissioner's discretion - deceased estate
Question
Will the Commissioner exercise his discretion under subsection 118-195(1) of the Income Tax Assessment Act 1997 and allow an extension of time to the two-year period?
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 'QC 66057' on ato.gov.au.
This ruling applies for the following period:
Year ended 30 June 20XX.
The scheme commenced on:
1 July 20XX.
Relevant facts and circumstances
The deceased purchased the property before 20 September 1985.
Just before the deceased passed away Executor 1 moved into the dwelling.
The deceased passed away.
The dwelling was the deceased main residence.
The dwelling was never used to produce income.
The dwelling is less than 2 hectares.
The will of the deceased was dated just before the deceased passed away.
Ten months after the deceased passed away probate was granted.
Probate was granted to Executor 1, Executor 2, Executor 3 and Executor 4 (the Executors).
Executor 1 refused to vacate the dwelling after the deceased passed away continuing to utilise the dwelling as their main residence.
The deceased's will did not create or grant any right to reside in the dwelling after the deceased's death.
Soon after probate was granted the dwelling was listed for sale with the selling agent.
The Executors met at the dwelling to discuss and sign the sales agency agreement with the selling agent.
The Executors accepted the selling agent's advice to market the dwelling subject to vacant possession.
The contact for sale of dwelling and application for FRCGW clearance certificate submitted by the Executors.
Between probate being granted and Executor 1 retaining separate legal advice, Executor 1 agreed to vacate the dwelling on multiple occasions however did not do so.
Executor 1 retained Lawyer 2 to act on their behalf regarding the administration of the deceased's estate.
Executor 1 and Executors 2-4 agreed that Executor 1 would vacate the dwelling approximately 6 months after probate was granted.
Executor 1 did not vacate the dwelling on the agreed date.
Approximately 7 months after probate was granted Executors 2-4 filled a Summons for possession of the dwelling in the Supreme Court.
Executor 1 was ordered to vacate the dwelling and a writ of possession was filed with the Sherriff attending the dwelling.
Approximately 2 years after the death of the deceased the dwelling was relisted for sale with the selling agent.
The dwelling went to auction and was sold 2 months after being listed.
Two months after the sale of the dwelling settlement occurred on the dwelling.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 104-10
Income Tax Assessment Act 1997 section 118-130
Income Tax Assessment Act 1997 section 118-195