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Edited version of your written advice
Authorisation Number: 4140063733652
Date of advice: 27 November 2018
Ruling
Subject: Commissioner’s discretion to extend the two year limit to dispose of a dwelling
Question
Will the Commissioner allow an extension of time to XX/mth/20XX for you to dispose of your ownership interest in the dwelling and disregard the capital gain you make on the disposal?
Answer
No.
This ruling applies for the following period:
Year ended 30 June 20XX
The scheme commences on:
1July 20XX
Relevant facts and circumstances
The deceased acquired a dwelling located at no/street/suburb/State A, postcode (the dwelling).
The deceased passed away on XX/mth/20XX.
The dwelling was the deceased’s main residence.
The deceased had ABC and DEF listed as Executors and beneficiaries in the will dated xx/mth/20XX.
XYZ is listed in will as a beneficiary of a Country A bank account only.
Probate was applied for, was unopposed and granted by Supreme Court of State A, xx/mth/20XX.
The title of the dwelling was transferred into the names of ABC and DEF as the beneficiaries of the deceased’s estate.
The will of the deceased did not provide XYZ a life interest or a right to reside in the dwelling.
ABC and DEF continued to allow XYZ to reside in the dwelling after the deceased passed away.
The dwelling was occupied by XYZ for a number of years prior to the death of the deceased. XYZ lived as a boarder in a self- contained area and paid board and lodgings to the deceased from 20XX to date of deceased’s death. ABC and DEF entered into a verbal agreement that XYZ could remain living at the dwelling for approximately XX-XX months from the date of deceased death. Letter supplied with private ruling application dated XX/mth/20XX has XYZ saying that he agrees to continue to pay the agreed rental rate until XYZ vacates.
Mth/20XX being XX months after date of death, ABC and DEF met with XYZ to discuss finding XYZ alternative accommodation. XYZ in mth/20XX lodged a claim via Supreme Court State A equity division to commence a family provision claim, parties agreed to discontinue the proceedings via a settlement which they agreed that XYZ shall continue to reside in the dwelling until XYZ arranges alternative accommodation, which XYZ must do by no later than xx/mth/20XX. If XYZ vacates the property prior to XX/mth/20XX, ABC and DEF must pay XYZ the sum of $XXX. XYZ moved out of the dwelling xx/mth/20XX.
The dwelling was recently sold and settlement occurred on xx/mth/20XX.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 104-10
Income Tax Assessment Act 1997 subsection 118-130(3)
Income Tax Assessment Act 1997 section 118-195