Private ruling: Commissioner's discretion - deceased estate
Date of advice: 22 September 2025
Published: 10 November 2025
Ruling period: Year ended DD MM YY
Date scheme commenced: DD MM YY

Ruling: Q1: Will the Commissioner exercise his discretion under section118-195 of the Income Tax Assessment Act 1997 to allow an extension of time for you to dispose of your ownership interest in the dwelling and disregard the capital gain or capital loss you made on the disposal? | A1: Yes. Having considered the circumstances surrounding the difficulties experienced in administering the estate, 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: The property is located at Address A. The property is less than 2 hectares. On DD MM YY the deceased acquired the property with their spouse. On DD MM YY the deceased acquired their spouse's 50% share of the property on their passing. On DD MM YY the deceased passed away. The will named the deceased's child, Person A, as executor of the estate. At the time of their passing the property was the deceased's main residence and that of their child Person B who was in receipt of a carer's pension. The property was not being used to produce assessable income. Person B's health was poor and with the cessation of the carer's pension and no other income, it was difficult for them to find rental accommodation and vacate the property. Person B's financial situation was resolved when they received a payment from the deceased's superannuation as their dependant. On DD MM YY Person B vacated the property. On DD MM YY an auction authority was signed with a real estate agency in preparation for selling the property. It was at this point that it was discovered that the original title for the property could not be located. A search conducted with the Lands Titles Office found a caveat was still on the property in relation to a mortgage. A letter was found, dated DD MM YY, that had been sent to the deceased and their spouse from their solicitors, which advised the mortgage had been discharged and the solicitors would hold the original copy of the title. The executor engaged a solicitor to assist them with the title and caveat, and with selling the property. The company that had issued the caveat no longer existed so the solicitor for the executor was required to advertise for the caveat to be removed and a new title issued. On DD MM YY a new auction authority was signed with an auction date set for DD MM YY. On DD MM YY, due to the real estate agent changing agencies, the old agency agreement was ended and a new one was signed on DD MM YY. On DD MM YY the executor's solicitor confirmed they were still working to resolve the issue with the missing title. On DD MM YY the deceased's solicitors confirmed they were not able to locate the title. The auction date was reset for DD MM YY. On DD MM YY the executor's solicitors confirmed they still progressing the issue with the title so the auction date was reset to DD MM YY. On DD MM YY the executor's solicitors advised they had received a new copy of the original title and would now apply to have the caveat removed. On DD MM YY the title of the property was transferred into the name of Person A as executor for the estate. On DD MM YY the real estate agent recommended resetting the auction date again and it was moved to DD MM YY. On DD MM YY the removal of the caveat was registered. On DD MM YY the property was listed for sale. On DD MM YY the property sold at auction. On DD MM YY settlement of the property took place.

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