Edited version of private advice

Authorisation Number: 1052394817695

Date of advice: 12 May 2025

Ruling

Subject: CGT - 2 year discretion

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 ending 30 June 20YY

The scheme commenced on:

1 July 20YY

Relevant facts and circumstances

The deceased and his partner purchased the property at xx xx xx, xx on DD MM 20YY.

The property was transferred solely to the deceased in MM 20TT after their separation.

The property was the deceased's main residence and never used to produce income.

The deceased passed away on DD MM 20YY.

The deceased died intestate.

The deceased was not in a relationship at the date of their death and was survived by their two children; xxxx whose other parent is xx xx and xxxx whose parent is xx xx.

The children are minor beneficiaries and are the only persons entitled to benefit from the deceased's estate under the Intestacy Act 2010.

On DD MM 2021 one of the deceased's parents filed a notice of intent to apply for a Grant of Administration.

In MM 20YY the Supreme Court advised that the application required the consent of the deceased's former partners as guardians of the deceased's children.

On DD MM 20YY the xx xx (xxxx) filed a notice of intention to apply for a Grant of Administration.

A dispute arose between the one of the children's parents and the deceased's parents regarding administration of the estate.

On DD MM 20YY, the child's parent sought legal advice regarding their applying for letters of administration as litigation guardian for the minor beneficiary.

On DD MM 20YY the legal representation for litigation guardian filed a probate caveat on the estate with the Supreme Court to prevent xxxx applying for grant to administer the estate. The caveat lapsed on DD MM 20YY. The litigation guardian did not lodge an application for grant of letters of administration.

In MM 20YY the parents of the deceased engaged legal representation in regard to the estate.

On DD MM 20YY legal representation for the parents wrote to the litigation guardian advising they would object to an application for grant of letters of administration for them and their sibling. They also sought consent that xxxx be appointed as administrators. They did not receive a response to this request.

In MM/MM 20YY legal representation for the parents were instructed that the parents would apply for joint administration of the estate. A notice of intent was filed on DD MM 20YY.

On DD MM 20YY, legal representation for the parents sought approval from the Deputy Registrar of the Supreme Court for the deceased's parents to apply for letters of administration, subject to approval by both minors' guardians. The deceased's parents nominated to take on the duties of administration due to the low value of the estate with a view to the beneficial interest of the minor beneficiaries.

On DD MM 20YY, the Deputy Registrar confirmed their agreement with the proposal in the circumstances.

On DD MM 20YY the probate caveat filed by the litigation guardian lapsed and was not renewed.

On DD MM 20YY legal representation for the parents sought consent from the minor's guardians re the parents' application. One of the guardians executed the consent form and the litigation guardian communicated that they did not consent.

On DD MM 20YY legal representation filed a probate caveat with the Supreme Court.

On DD MM 20YY and DD MM 20YY, the legal representation for the parents sought affidavits regarding suitability of the deceased's parents as administrators.

On DD MM 20YY the deceased's parents filed an application for grant of letters on the intestacy estate.

On DD MM 20YY the Deputy Registrar advised the application was required to be reviewed by a court judge.

On DD MM 20YY the parents' legal representation lodged a writ with the Supreme Court seeking grant of letters of administration.

On DD MM 20YY the litigation guardian filed a notice of appearance with the Supreme Court.

On DD MM 20YY the deceased's parents filed an affidavit of testamentary scripts.

On DD MM 20YY legal representation for the litigation guardian advised that they did not wish the parents to administer the estate; their preference being to consent for xxxx to be appointed as administrators.

On DD MM 20YY, the litigation guardian filed an affidavit of testamentary scripts.

On DD MM 20YY a statement of claim was lodged by the deceased's parents seeking orders that letters of administration be granted to them.

On DD MM 20YY legal representation for the parents filed an application seeking an order the proceedings be set down for trial.

A Supreme Court hearing on the matter took place on DD MM 20YY.

On DD MM 20YY consent orders to appoint the xxxx as administrator were sent to the legal representation of the litigation guardian.

On DD MM 20YY legal representation for the parents sought consent from the other minor beneficiary's guardian, to apply for a grant of letters of administration to xxxx.

On DD MM 20YY the minor beneficiary's guardian provided their consent.

On DD MM 20YY the litigation guardian provided their consent.

On DD MM 20YY legal representation for the parents provided the Supreme Court with signed consent orders.

On DD MM 20YY xxxx were advised that court orders had been filed seeking their appointment as administrator of the estate.

On DD MM 20YY the Supreme Court ordered that Letters of Administration be granted to xxxx.

In MM 20YY xxxx commissioned a property valuation.

On DD MM 20YY an application for Letters of Administration was filed with the Supreme Court by xxxx.

On DD MM 20YY Letters of Administration were granted by the Supreme Court to xxxx.

The property was listed for sale on DD MM 20YY and sold on DD MM 20YY, with settlement occurring on DD MM 20YY.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 118-195