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Edited version of private advice
Authorisation Number: 1052400642173
Date of advice: 26 June 2025
Ruling
Subject: Commissioner's discretion - deceased estates
Question 1
Will the Commissioner exercise the discretion under section 118-195 of Income Tax Assessment Act (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:
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.
The property was purchased prior to 20th of September 1985 by the deceased and their spouse as joint tenants.
The property is less than 2 hectares.
The property was the main residence of the deceased and their spouse for tax purposes and was not used for income producing purposes at any stage.
The deceased's spouse passed away on DD MM YYYY. Through survivorship the deceased acquired their spouse's share of the property at this time.
The deceased passed away on the DD MM YYYY.
The deceased had a will dated DD MM YYYY. The will appointed 2 people as joint executors. At the time the deceased passed away one executor was unable to exercise their duties and the other executor was appointed solely through probate.
The property was a part of the residual assets of the will. In the will these residual assets were split equally between 2 beneficiaries.
There was a delay in granting probate due to no fault of the executor.
The executor of the estate provided supporting information that the administration of the estate was delayed due to circumstances outside their control between DD MM YYYY and DD MM YYYY.
On DD MM YYYY the property was sold at a public auction.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-195
Income Tax Assessment Act 1997 section 118-145
Income Tax Assessment Act 1997 section 149-10