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Edited version of private advice
Authorisation Number: 1052353229673
Date of advice: 22 January 2025
Ruling
Subject: Commissioner's discretion - deceased estates
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 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 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 XX XXXX 20YY
The scheme commenced on:
XX XXXX 20YY
Relevant facts and circumstances
The deceased and their spouse acquired the Property as joint tenants before XX XXXX 19YY.
On XX XXXX 19YY, the deceased's spouse passed away and the spouse's interest in the property passed to the deceased.
The deceased and their spouse utilised the absence choice to treat the property as their main residence during periods of absence.
The deceased's will provided that their three children will receive equal shares in the property.
The property has been vacant since the date the deceased passed away and no income has been derived from the dwelling.
In XXXX 20YY, the executor suffered a medical condition and spent XX weeks in hospital. The medical condition impacted the executor's ability to administer the estate.
On XX XXXX 20YY, the deceased passed away.
The property was the main residence of the deceased until they passed away.
The health issues suffered by the executor resulted in a focus on recovery with rehabilitation services throughout the 20YY year. The rehabilitation services continued into the 20YY year.
In XXXX 20YY, the executor experienced a further medical condition resulting in a further hospitalisation. The executor underwent a medical procedure and stayed for XX days within hospital.
Following the executors hospitalisation they underwent further rehabilitation for XX days and was discharged on XX XXXX 20YY. The executor was hospitalised a week later due to further medical issues and remained admitted until XX XXXX 20YY.
After the executors discharge from hospital, they remained under home care services from the Hospital with regular visits from medical professionals.
On XX XXXX 20YY, the executor experienced another medical issue leading to hospitalisation. The executor was diagnosed with a medical condition and discharged on XX XXXX 20YY. The medical conditions have impaired the executor's ability to administer the estate.
The executor engaged a real estate agent three times during the administration of the estate in attempts to sell the property.
The executor was able to sell the property by contract of sale executed on XX XXXX 20YY and settlement on XX XXXX 20YY.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195