Private ruling: Request for Commissioner's discretion
Date of advice: 14 March 2016
Published: May 2016
Ruling period: Year ending 30 June 2016 | Year ending 30 June 2017 | Year ending 30 June 2018 | Year ending 30 June 2019 | Year ending 30 June 2020
Date scheme commenced: 1 July 2015

Ruling: Q1: Will the Commissioner exercise the discretion provided under section 118-195 of the Income Tax Assessment Act 1997 (ITAA 1997) to extend the two-year main residence exemption period until 12 months after the date on which title to the property is transferred to you? | A1: Yes.

Relevant facts and circumstances: The deceased purchased property before 20 September 1985. The deceased passed away in 20XX. Probate was granted sometime later. You advise that there is no prospect of the administration of the estate being completed within two years of the deceased's passing. Administration of the estate, which includes the disposal of the property, has been delayed for reasons outside of your control. You propose to sell the property as soon as possible after title is transferred to you. You wish to extend the two-year time period to a date 12 months after the date on which title to the property, is transferred to you by the executors of the estate.

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

Reasons for decision: Summary: Subsection 118-195(1) of the ITAA 1997 states that if you own a dwelling in your capacity as trustee of a deceased estate (or it passed to you as a beneficiary of an estate), then you are exempt from tax on any capital gain made on the disposal of the property if: • the property was acquired by the deceased before 20 September 1985, or • the property was acquired by the deceased on or after 20 September 1985 and the dwelling was the deceased's main residence just before the deceased's death and was not then being used for the purpose of producing assessable income, and • your ownership interest ends within 2 years of the deceased's death (the Commissioner has discretion to extend this period in certain circumstances). You have an ownership interest in a property if you have a legal interest in the property. This means that if you sell a property, your ownership interest continues until the date of settlement (rather than the date the contract of sale is signed). In this case, the property was purchased by the deceased prior to September 1985. The property was therefore a pre-CGT asset of theirs. The deceased passed away in 20XX. The property is yet to be sold. You advise that there is no prospect of the administration of the estate being completed within two years of the deceased's passing. Therefore, you will only be able to disregard the capital gain from the sale of the property if the Commissioner extends the two year time period. The Commissioner can exercise his discretion in situations such as where: • the ownership of a dwelling or a will is challenged; • the complexity of a deceased estate delays the completion of administration of the estate; • a trustee or beneficiary is unable to attend to the deceased estate due to unforeseen or serious personal circumstances arising during the two-year period (for example, the taxpayer or a family member has severe illness or injury); or • settlement of a contract of sale over the dwelling is unexpectedly delayed or falls through for circumstances outside the beneficiary or trustee's control. Having considered the circumstances and the factors outlined above, the Commissioner is able to apply his discretion under subsection 118-195(1) of the ITAA 1997 and allow an extension of time until 12 months after the date on which the title to the property is transferred to you.