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Edited version of private advice
Authorisation Number: 1052224471558
Date of advice: 13 March 2024
Ruling
Subject: CGT - main residence
Question
At the time of the deceased's death, was the property their main residence for the purposes of Subdivision 118-B Income Tax Assessment Act 1997 (ITAA 1997)?
Answer
Yes.
The property comprises a dwelling situated on less than two hectares of land. At the time of the deceased's death, the deceased owned the property, physically resided at the property for as much time as their health permitted, did not regard any other property to be their main residence, and treated the property as their main residence.
As such, the property was the deceased's main residence for the purposes of Subdivision 118-B of the ITAA 1997 at the time of their death.
This ruling applies for the following period:
30 June 20XX
The scheme commenced on:
1 July 20XX
Relevant facts and circumstances
At the time of their death the deceased owned a property (Property A) comprising a dwelling situated less than two hectares of land.
Property A was purchased by the deceased's parent after DD MM 19YY.
The deceased's parent did not occupy Property A.
The deceased's parent passed away and bequeathed Property A to the deceased.
The title for Property A was transferred to the deceased.
The deceased had lived in Property A since it was originally purchased by the deceased's parent until a point in time shortly after the deceased's parent's death.
At this point in time the deceased moved into their spouse's property (Property B) and made Property A available to rent.
The deceased had no ownership interest in Property B.
While living in Property B the deceased suffered a serious medical event. They subsequently entered an aged care facility.
The deceased's spouse sold Property B sometime after. Upon selling property B, Property A ceased being available for rent, and the deceased's spouse moved into to Property A to live.
At this time:
• The deceased's personal effects and belongings were relocated to Property A;
• The deceased registered Property A as their address on the electoral roll;
• The deceased spent as much time at Property A as their health condition allowed;
• The deceased did not regard any other property to be their main residence.
The deceased regarded Property A to be their main residence from this point in time.
From this time until the deceased passed away, they would spend as much time as possible at Property A with their spouse or other carers. The deceased was unable to live independently due to deteriorating health.
The deceased would sleep at the aged care facility out of necessity.
The deceased would invariably ask to spend the day at Property A.
Relevant legislative provisions
Income Tax Assessment Act 1997 Subdivision 118-B