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Edited version of private advice
Authorisation Number: 1052227428022
Date of advice: 28 February 2024
Ruling
Subject: Commissioner's discretion - deceased estate
Question
Will the Commissioner exercise the discretion under section 118-195 of 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:
Financial year ending 30 June CCYY
The scheme commenced on:
XX/MM/CCYY
Relevant facts and circumstances
The deceased passed away on XX/MM/CCYY.
The dwelling is located in Australia (the property).
The deceased acquired the property prior to 20 September 1985.
The property was the main residence of the deceased just before they passed away and was not used to produce assessable income at that time.
The property was situated on less than two hectares of land.
Probate was granted on XX/MM/CCYY and the deceased's will appointed an executor.
The executor made active attempts to prepare the property for sale, however, circumstances outside of their control such as lack of response from the beneficiary's, legal action and other sensitive complexities caused delays.
The property was listed for sale on XX/MM/CCYY. A contract to sell the property was entered into on XX/MM/CCYY with settlement occurring on XX/MM/CCYY.
Relevant legislative provisions
Income Tax Assessment Act 1997 Section 118-195