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Edited version of private advice
Authorisation Number: 1052389583004
Date of advice: 28 April 2025
Ruling
Subject: Commissioner discretion - extension of time
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 30 June 202X
The scheme commences on:
1 July 202X
Relevant facts and circumstances
The property, which is situated in XX XX XX, XX, XX is part of the deceased estate.
The property was built in 19xx.
The property is less than 2 hectares.
The deceased passed away in MM 20XX.
The property was the deceased's main residence and never used to produce income.
The probate was granted on DD MM 20XX.
The deceased's will appoints the children E and W, as the executors and trustees of the estate.
The beneficiaries of the will include all the children E, W and N.
N has a health condition. The other siblings, E and W, were appointed by the Civil and Administrative Tribunal to manage N's affairs.
In MM 20XX, E, one of the executors, passed away.
N lived with their father from the time of passing until the property was sold in MM 20XX.
The will did not specify for N to remain living in the property.
N lives independently, and sibling W, who lives XX meters away, supports N daily with medications, cleaning and shopping.
No renovations and improvements were made to the property while N was living at the property.
N temporarily moved to W's house when the property was listed for sale in MM 20XX and stayed there until a new unit for N was settled in MM 20XX.
W does not have a good relationship with E's spouse, which made decision-making for N even more difficult.
Land tax notices were being sent to E's spouse, Y, who was not handling any financial or paperwork matters following E's passing and was not communicating appropriately with W.
Significant cause of the delay was due to N's health condition, as N remained in the dwelling until the property could be sold and the proceeds used to purchase a unit for N.
Additionally, the COVID-19 pandemic, which began in MM 20XX, and the extended lockdowns in XX through to late 20XX, further limited the ability to sell the home.
The property was listed for sale in MM 20XX, and settlement took place in MM 20XX.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195