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Edited version of private advice
Authorisation Number: 1052320926418
Date of advice: 22 October 2024
Ruling
Subject: CGT - deceased estate
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 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 2025
The scheme commenced on:
XX XXX 20XX
Relevant facts and circumstances
The deceased passed away on XX XXX 20XX.
The deceased owned a property (the property).
The property is less than 2 hectares.
The property was the main residence of the deceased just before they passed away.
The property has never been rented.
The property has been vacant.
Under the will the property was not the main residence of the spouse of the deceased nor any beneficiary.
A copy of the will has been provided.
Probate was granted.
The grant of probate was delayed as one of the executors lives overseas.
The executor living overseas was required to travel to have forms verified.
An application to the bank for an estate bank account took place.
Fund were released by the bank to the estate's bank account 11 months later.
A copy of the bank apology letter regarding the delay in the release of funds has been provided.
The executor living overseas was not able to assist in working through the contents of the house.
One executor was left to sort out the contents of the house.
The contents of the house included the deceased's possessions.
The contents also included the possessions of the deceased's spouse who had passed away.
The contents also included the contents of a deceased family member.
The executor felt great responsibility to respect the family history and not throw out indiscriminately any items of significance.
The executor suffered two bouts of illness.
The executor suffered from a physical injury which eventually necessitated surgery and required a hospital stay and a significant rehabilitation program.
A copy of the Record of Certificate of Title has been provided.
The Property was held in the names of both executors of the will.
The property was listed for sale.
The property sale was settled.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195