Private ruling: Commissioner's discretion - deceased estates
Date of advice: 1 March 2024
Published: 15 April 2024
Ruling period: Year ending 30 June 2022 | Year ending 30 June 2023 | Year ending 30 June 2024
Date scheme commenced: 1 July 2021

Ruling: Q1: Will the Commissioner exercise his discretion under subsection 152-80(3) of the Income Tax Assessment Act 1997 to extend the two-year period to dispose the deceased's assets until 6 August 2024? | A1: Yes. In this case, it is reasonable to conclude that the delays caused by the health issues suffered by you and the company's director were factors outside of your control. There is no evidence of mischief, and it is accepted that if the extension of time is granted, the exercise of the discretion will not prejudice the Commissioner, nor cause any unsettling of people or of established practices. Furthermore, as you have engaged with potential buyers with the asset, it is likely that no further extension would need to be provided. Therefore, it will be fair and equitable in your circumstances to provide an extension of time to dispose the deceased's assets and apply the retirement concession.

Relevant facts and circumstances: Prior to their death, your spouse (the deceased) acquired shares in a company (the company). In 20XX, the deceased passed away. As the joint executor of your spouse's deceased estate, you were tasked with selling the shares in the company. Due to various health issues, you have been unable to dispose of the company's shares. The financial records in relation to the company that would assist in selling the shares were delayed due to the company's director also suffering from health issues. Probate has not yet been finalised. You currently have a potential buyer for the shares, but no contract has yet been signed. The deceased would have been entitled to the apply the small business retirement concession if the company shares were sold before their death.

Relevant legislative provisions: Income Tax Assessment Act 1997 section 152-80 | Income Tax Assessment Act 1997 subsection 152-80(3)