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Edited version of private advice
Authorisation Number: 1052233634369
Date of advice: 19 April 2024
Ruling
Subject: Commissioner's discretion - deceased estates
Question
Will the Commissioner exercise the discretion under section 118-195 of the Income Tax Assessment Act 1997 (ITAA 1997)to allow an extension of time for you to dispose of your ownership interest acquired 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 deceased purchased the property at XX X XXXX as joint tenants.
When the deceased passed away, they owned the property at 100%.
The deceased passed away on XX X XXXX
The property was situated on less than two hectares of land.
The property was not used to produce assessable income.
The property was the main residence of the deceased until they passed away.
No official disputes were lodged however, all the trustees/beneficiaries and family members were not in agreement with how and when to sell the property, this was dealt with privately through open communication within the family.
There were further delays in selling the property was due to health issues impacting one of the beneficiary's person B.
The health issues impacted the beneficiary for a period covering 2 years.
In early XXXX all the trustee/beneficiaries came to the consensus to sell the premises but due to unforeseen circumstances for one of the executor's/beneficiary's person C, it was thought that they may have needed to reside in the property until they could obtain alternative living arrangements.
In XXXX, all the beneficiaries revisited the idea of selling the property and they all agreed.
While making enquiries about selling the property Person A was advised that to be able to sell the property and settle the estate, they would be required to obtain probate.
On XX month 20XX Probate was applied for personally by person B as they did not have the financial ability to obtain a solicitor.
Due to errors within the probate applications, additional information and documentation was required before probate could be granted.
Probate was granted XX X XXXX
Services such as gas and power were still connected and held by the family until the settlement date.
Settlement proceeded early as practicable and finalised on XX X XXXX.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195(1)