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Edited version of private advice
Authorisation Number: 1052382847710
Date of advice: 6 May 2025
Ruling
Subject: CGT - deceased estate
Question
Will the Commissioner exercise his 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 XX XXX 20XX
The scheme commenced on:
XX XXX 20XX
Relevant facts and circumstances
Person A (the deceased) passed away on XX XXX 20XX.
The dwelling is located at Address A (the property).
The property was situated on less than two hectares of land.
The deceased acquired the property after XX XXX 19XX with Person B.
The deceased and Person B were divorced in 19XX and became the sole owner by purchasing Person B's ownership interest portion of the property.
In XXX 20XX, Person A married Person C.
The property remained the main residence of the deceased just before they passed away and was not used to produce assessable income at that time.
The deceased Will nominated Person D and Person C to be the owners of the property as tenants in common.
Grant of probate was applied on X XXX 20XX however Person D did not gain access to the property until XX XXX 20XX
Following the grant of probate Person C filed a provision claim against the deceased's Will.
The legal proceedings ended on XX XXX 20XX where an agreement was reached for Person C to receive lump sum amount of $XXX, XXX in exchange for possession of the property to be given to Person D.
Person D had full possession of property by XX XXX 20XX (Approximated 2 years and 2 months after the deceased passing)
The property was listed for sale as soon as the legal proceedings were settled. You entered a contract to sell the property on XX XXX 20XX with settlement occurring on XX XXX 20XX.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195