Private ruling: Commissioners two year discretion
Date of advice: 5 March 2019
Published: May 2019
Ruling period: Year ending 30 June 2019
Date scheme commenced: 1 July 2018

Ruling: Q1: Will the Commissioner exercise his discretion under subsection 118-195(1) of the Income Tax Assessment Act 1997 (ITAA 1997) and allow an extension of time to the two year period for both properties? | 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 52250' on ato.gov.au.

Relevant facts and circumstances: The deceased purchased a property prior to 20 September 1985 (dwelling 1). The deceased occupied dwelling 1 as your main residence until you purchased a second property. The deceased purchased a second property after 20 September 1985 (dwelling 2). The deceased moved into an aged care facility. A few years later the deceased passed away (the deceased). Dwelling 2 was the deceased’s main residence at the time of their death. Dwelling 2 was not used for income producing activities and no income has been received from the dwelling after the passing of the deceased. The deceased’s will named XX beneficiaries, including X individuals and XX charities. The consent to sell the properties had to be garnered from all beneficiaries. It was not clear from the will which ABC organisation was beneficiary as the will referred only to ABC, which needed to be resolved. Approximately 6 months after the passing of the deceased Probate was granted. The consent documents were prepared by the deceased’s estates solicitors and sent to all beneficiaries upon probate being granted. Approximately 18 months after the consent documents were mailed out the final consent documents were returned. A few months after all the consent documents were received all the consent documents were countersigned by the executors of the deceased estate. Both dwelling were sold. Approximately 2 years and 8 months after the death of the deceased settlement occurred on dwelling 2. Approximately 2 years and 10 months after the death of the deceased settlement occurred on dwelling 1.

Relevant legislative provisions: Income Tax Assessment Act 1997 section 104-10 | Income Tax Assessment Act 1997 section 118-130 | Income Tax Assessment Act 1997 section 118-195