Private ruling: Commissioner's discretion - deceased estate
Date of advice: 10 June 2022
Published: August 2022
Ruling period: Year ending 30 June 20XX
Date scheme commenced: 1 July 20XX

Ruling: Q1: Will the Commissioner exercise the discretion to allow an extension of time for you to dispose of your ownership interest in the dwelling and disregard the capital gain or loss you made on the disposal? | A1: Yes. Having considered your circumstances and the relevant factors, the Commissioner will allow an extension of time. Further information about this discretion can be found by searching 'QC 66057' on ato.gov.au.

Relevant facts and circumstances: At some time after 1985, the deceased acquired the property. It was the main residence of the deceased and their child just before their death and was never used to produce income. The property size is less than two hectares. The deceased's child continued to use the property as their main residence subsequent to the deceased's death. Whilst on overseas holidays with their child, the deceased passed away. The deceased's child was severely impacted by the sudden death of their parent which affected their ability to attend to the timely administration of the estate. Having passed away overseas also created complications that contributed to the delay. The deceased's death certificate was delayed and issued overseas. The deceased's child made several attempts to return to home but was unable due to COVID restrictions and not being able to afford flights. Later, the deceased's child returned home. They immediately made an appointment with their solicitors to arrange an application for probate. Shortly after, the deceased's overseas death certificate was translated and certified. Shortly after, probate was granted. The court accepted that the delay in applying for probate was due to circumstances beyond the deceased's child's control. Shortly after, the deceased's child engaged a real estate agent to sell the property. The property sold and settled within one year and eight months after the two-year period expired.

Relevant legislative provisions: Income Tax Assessment Act 1997 Section 118-195