Private ruling: Commissioner's discretion - deceased estate
Date of advice: 5 May 2026
Published: 20 July 2026
Ruling period: Year ended 30 June 20xx | Year ended 30 June 20xx
Date scheme commenced: 1 July 20xx

Ruling: Q1: 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 property and disregard the capital gain or capital loss you made on the disposal? | A1: 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'.

Relevant facts and circumstances: General facts Sometime after September 20, 1985, the deceased acquired a residential property. The property was the deceased's main residence at date of death, and it was not used to produce income. The property contains a dwelling and is less than 2 hectares in size. The deceased's Will appointed an acquaintance (Person 1) as sole executor of the deceased's Estate. The deceased died. Person 1 engaged a law firm to advise on their executorial obligations and act on their behalf regarding the administration of the Estate. Person 1 informed the lawyers at this time that the deceased's will was likely to be held by the law firm which prepared the deceased's Will. Around 4 months after the deceased's date of death (DOD) the deceased's death certificate was issued. The deceased's Will was not held by the law firm who prepared the will. After around 3.5 months of multiple attempts to locate the deceased's original Will it was eventually found at the property. 9 months after the deceased's DOD Person 1 signed the application for probate and it was lodged with the Court on the same day. Approximately ten months after the deceased's date of death, probate was granted to Person 1. Executorship issues 18 months after the deceased's DOD, Person 1 was admitted to hospital due to their failing health. Person 1 became increasingly unable to fulfil their duties as executor. Eight months after Person 1 was admitted to hospital orders were made by the Supreme Court discharging Person 1 as the executor of the Estate, and appointing another acquaintance of the deceased as the Administrator of the Estate. Title was registered in the Administrator's name three months after their appointment. Property repairs and refurbishment Less than one year after the deceased's DOD the executor of the estate became aware that the property had become damaged due to structural issues which required repair to prevent further damage to the dwelling. As a strata titled dwelling the insurance claim for property damage was lodged through the corporate entity managing the residential complex. The ongoing complications of progressing externally managed construction and repair works through periods of COVID restrictions and delays waiting for works to be carried out resulted in the repair works spanning a period of roughly 3 years beginning around 9 months after the deceased's DOD. Sale of the property Approximately 3 years and 3 months after the deceased's DOD the Administrator engaged an agency to list the property for sale. Less than two months after the property was listed for sale the contract of sale for the property was executed. 5 months after the contract of sale was executed, settlement of the property occurred.

Relevant legislative provisions: Income Tax Assessment Act section 118-195