Private ruling: Commissioner's discretion - deceased estate
Date of advice: 9 January 2025
Published: 3 March 2025
Ruling period: Year ended 30 June 20XX
Date scheme commenced: 1 July 20XX

Ruling: Q1: Will the Commissioner exercise the discretion under section 118-195 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 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: The deceased passed away on DD MM 20YY. The property is located at XXXX (the property). The deceased acquired the property after 20 September 1985. The property was the main residence of the deceased just before they passed away and was not being used to produce assessable income at that time. The property was situated on less than two hectares of land. Per the Will of the deceased, the estate was to be bequeathed evenly to three beneficiaries: Person A, Person B and Person C. It was decided that Person C would inherit the property, whereas the remainder of the estate would be inherited by Persons A and B. On DD MM 20YY, Person C passed away. On DD MM 20YY, probate was granted for the deceased. Person C passed away without a Will. As such, obtaining probate has been challenging as it is being contested between Person A and Person B, and another individual. As the estate for Person C's estate forms 1/3 of the estate of the deceased, this has caused difficulties in retaining the services of a solicitor. In MM 20YY, Person A and Person B listed the property on the real estate market for sale. Between DD MM 20YY and DD MM 20YY, the property had multiple viewings. Multiple offers were received and accepted, but all offers were subsequently withdrawn due to various reasons. During this period, the property price was lowered multiple times to meet market feedback to sell the property. The property was sold in MM 20YY, with settlement occurring in MM 20YY. The property has not been used to produce assessable income between the date the deceased passed away until the date the property was sold.

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