Private ruling: Deceased Estate, CGT, 2 year discretion
Date of advice: 30 August 2018
Published: October 2018
Ruling period: Year ending 1 June 20xx
Date scheme commenced: 1 July 20xx

Ruling: Q1: Will the Commissioner exercise his discretion under subsection 118-195(1) of the Income Tax Assessment Act 1997 (ITAA 1997) and extend the 2 year period until xxxx? | A1: Yes Having considered your circumstances and the relevant factors, the Commissioner is able to apply his discretion under subsection 118-195(1) of the ITAA 1997 and allow an extension of time until xxxx. Further information on the relevant factors and inheriting a dwelling generally can be found on our website ato.gov.au and entering Quick Code QC52250 into the search bar at the top right of the page.

Relevant facts and circumstances: xxxx (the deceased) date of death was xxxx. The deceased acquired xxxx (the property) pre CGT (21 September 1985). The property was the deceased’s main residence at the time of xxxx death and remained vacant from her date of death. You and your xxxx xxxx were named as the executors and the beneficiaries in the Will. Probate was granted in xxxx. On xxxx your solicitor received a letter from the solicitors acting for xxxx and xxxx requesting a copy of the deceased’s Will and a copy of Probate. Your solicitor advised you “that any claim on the estate and/or challenge of the Will would normally have to be made within 12 months of the date of death (unless the Court ordered otherwise).” Your solicitor provided confirmation letter dated xxxx of this advice. You misunderstood your solicitor and thought the 12 months began from the date your xxxx solicitor requested copy of the deceased’s Will and Probate. Your xxxx has an xxxx. They told your xxxx that they would place a caveat on the property causing you and xxxx further stress. No contestation/claim to the Will was lodged. You work full time. You had an existing medical condition that worsened in xxxx. You had numerous surgical procedures in xxxx and xxxx but your medical condition did not improve. You continued to see various specialists until you were placed on an urgent surgical waiting list to have an operation in xxxx. After your operation you had to have xxxx leave from work and could not lift anything or bend over. Medical documents from specialists provided. Your xxxx does not work and receives a xxxx. xxxx suffers from depression, anxiety and trauma and as a result can’t cope mentally with legal and financial proceedings without your help. Letter provided from xxxx. On or about xxxx when you had recovered from one of your medical procedures you and your xxxx approached real estate agent xxxx to list property. The campaign to sell the property was to start in xxxx but due to your medical condition deteriorating you had to cancel campaign. Your xxxx could not manage without you due her medical condition. You and your xxxx signed an exclusive agreement with real estate agent xxxx on xxxx, the marketing campaign commenced on xxxx and an auction took place on xxxx. The house did not sell at the auction. You received an offer to purchase at the end of xxxx that you and your xxxx accepted. The property sold with a sales contract signed on xxxx with a settlement date of xxxx.

Relevant legislative provisions: Income Tax Assessment Act 1997 section 118-195 | Income Tax Assessment Act 1997 subsection 118-195(1)