Edited version of private advice

Authorisation Number: 1052397874129

Date of advice: 22 May 2025

Ruling

Subject: Commissioner's discretion - deceased estate

Question 1

Will the Commissioner exercise the discretion under section 118-195 of 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 DD MM YYYY

The scheme commenced on:

DD MM YYYY

Relevant facts and circumstances

This private ruling is based on the facts and circumstances set out below. If your facts and circumstances are different from those set out below, this private ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling.

On DD MM 20YY the deceased acquired the property.

The property is less than 2 hectares.

The property was used at all times as the deceased's main residence.

The deceased passed away on DD MM 20YY.

The property was not used for income producing purposes at any stage.

The deceased had a will dated DD MM 20YY and probate was granted on DD MM 20YY. The will contained a provision allowing the spouse a lifetime right to occupy the property. The residuary estate was then to transfer to the beneficiaries at the end of the occupancy.

The spouse resided in the property until DD MM 20YY, at which point they entered an age care facility.

The property was listed for sale a few weeks after the occupancy ended. A contract of sale was signed on the DD MM 20YY and settlement occurred on the DD MM 20YY.

The spouse did not use the property for income producing purposes.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 118-95