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Edited version of private advice
Authorisation Number: 1052340325393
Date of advice: 05 December 2024
Ruling
Subject: Capital gains tax
Question 1
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 to dispose of the ownership interest in the Property and disregard the capital gain made on the disposal?
Answer 1
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:
1July 20XX
Relevant facts and circumstances
The deceased passed away a few years ago.
The deceased owned a property (the property).
The property was acquired by the deceased prior to 19XX.
The property was the deceased main residence when they passed away.
The property was less than X hectares.
The property was never used to derive income both before and after the deceased passed away.
The deceased went into a nursing home prior to their death.
The deceased's child had sole use of the property for a couple of years prior to the deceased passing away.
The child was removed from the property due to accruing debts relating to utilities etc.
There were multiple delays in administering the Estate.
There were multiple Wills located belonging to the deceased of which a solicitor was originally appointed by the executor the deceased's child to administer.
The wills were dated several years apart, and one had multiple issues - two or more pens used, written by an unknown person, different handwriting to deceased.
The Will that had multiple issues and Individual Z was named the Sole Executor.
Individual Z renounced being executor and appointed Public Trustee to administer the estate.
Public Trustee appointed lawyers to prove the Will and locate witnesses.
Probate was delayed and granted a number of years after the deceased passed away.
Other complications throughout administration as the deceased's child passed away prior to probate being granted.
The deceased's child is a beneficiary of the estate and accrued significant property expenses which are owed to this estate.
There have been delays in applying for probate for the child's estate due to having insufficient documentation.
Public Trustee have decided to continue administration of the deceased estate and hold an account for the child for distribution at a later stage.
The property was a rural property which brings with it delays in selling.
The property was placed on the market and sold several weeks later.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 8-1