Edited version of private advice

Authorisation number: 1052257626927

Date of advice: 30 May 2024

Ruling

Subject: Commissioner discretion - extension of time

Question

Will the Commissioner exercise the discretion under section 118-195 of the 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:

Year ending 30 June 20XX

The scheme commenced on:

XX MM 20XX

Relevant facts and circumstances

The deceased passed away on DD MM 20XX.

At the date of death, the deceased owned a property. The property was the deceased's main residence and was not used for the purpose of producing assessable income.

The deceased acquired the property after 20 September 1985. The property is less than 2 hectares.

The complexity of the estate

The deceased had a will dated XX MM 20XX which appointed a sole executor and trustees of their estate in the first instance. In the circumstances the sole executor predeceased the deceased or was unable to act as executor and trustee for any reason then a backup executor and trustee would be appointed.

At the date of the deceased death the sole executor had predeceased and was no longer able to act as executor in the first instance. Furthermore, the backup executor and trustee appointed renounced their role leaving no legal personal representatives to administer the deceased's estate.

You were nominated as one of the several beneficiaries in the deceased will and elected to nominate yourself as the administrator of the estate with the assistance of a law firm.

The deceased's will provided that half of their estate should be divided between their seven siblings, many of whom resided overseas, with the remaining half to be divided between yourself and your brother.

On DD MM 20XX, you engaged Law Firm A to start the estate administration process.

On DD MM 20XX, Law Firm A advised that they could no longer assist you in the estate administration due to the law firm not being able to take on further work with the COVID restrictions.

On DD MM 20XX, you contacted Law Firm B to assist you with the administration of the estate.

On DD MM 20XX, Law Firm B began the legal work for your matter.

On DD MM 20XX, Law Firm B advised you that they were unable to continue assisting you with your legal assistance and referred you to Law Firm C to continue the work. During this period Law Firm B only just commenced the estate administration work.

On DD MM 20XX, Law Firm C notified that you had been successfully appointed as administrator of the estate by way of Letters of Administration.

As part of your role in administering the estate you had to obtain information and documents from a number of overseas and deceased beneficiaries. A process which took over 18 months to complete.

During the process of administering the estate several COVID restrictions and lockdowns were issued in your state and international borders were closed.

On DD MM 20XX, you commenced the process to sell the deceased's property by contacting the state titles office.

On DD MM 20XX, the state titles office issued you the certificate of title for the property under your name.

On DD MM 20XX, you undertook repairs and cleaned up the property in preparation for the sale.

On DD MM 20XX, you engaged a real estate agent to commence the sale of the property.

On DD MM 20XX, the property was listed for sale and subsequently sold on DD MM 20XX.

Between DD MM 20XX to DD MM 20XX, Law Firm C attended to and completed assisting you with the estate administration.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 118-195