Edited version of private advice

Authorisation Number: 1052225805081

Date of advice: 29 February 2024

Ruling

Subject: Commissioner's discretion - deceased estate

Question

Will the Commissioner exercise the discretion 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

Year ended 30 June 20XX

The scheme commenced on:

1 July 20XX

Relevant facts and circumstances

The property was purchased at some time after 1985. The property was the main residence of the deceased just before he passed away and was not used to produce assessable income at that time.

On XXXX, the deceased passed away.

The property was purchased on less than two hectares of land.

The deceased's will appointed you as executor and beneficiary (XX share), and your siblings as beneficiaries with (XX share) and (XX share) respectively.

Sibling A lives in XXXXXX. You experienced conflict with Sibling A regarding your management of the estate.

In XXXX XXXX, Sibling A was disappointed as they were not appointed executor and tried to organise the sale of the house privately.

On XXXX XXXX, you sorted the paperwork from the deceased's files, to locate the important documents to finalise the estate.

In XXXX, probate was granted.

You tried to locate Sibling B since the passing of the deceased so you could distribute the estate funds. You approached a police station who for privacy reasons could only tell you that they were alive and well but were not able to give you any further information.

In XXXX, COVID restrictions were re-instated.

From XXXX XXXX to XXXX XXXX, COVID restrictions were reinstated which impeded you from preparing the house for sale.

In XXXX, your spouse was a COVID close contact. As a result, the entire family went into isolation.

In XXXX, you replaced the faulty garage door at the property.

In XXXX, you contracted COVID, and were bed ridden for XX days. It took you two weeks to recover.

In XXXX, you disposed of a large amount of household items.

In XXXX, you arranged to replace the soiled and damaged carpets in bedroom.

In XXXX, your entire family contracted COVID and went into isolation. Sibling A did not approve of the conveyancer and enquired about their details.

In XXXX, you attended the property to mow the lawn, repair the kitchen, and style the property to prepare it for sale.

Sometime after, that the property was listed for sale.

Shortly after, the auction was cancelled due to lack of attendance.

Later, the property was sold.

The property settled less than 8 months after the end of the two-year period.

Relevant legislative provisions

Income Tax Assessment Act 1997 Section 118-195