Private ruling: Capital gains tax - deceased estate - Commissioner's decision - two year period
Date of advice: 18 March 2016
Published: May 2016
Ruling period: Year ending 30 June 20XX
Date scheme commenced: 1 July 20XX

Ruling: Q1: Will the Commissioner exercise 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? | A1: Yes.

Relevant facts and circumstances: The deceased purchased the property before 20 September 1985. The deceased died some time ago. The deceased lived in the property, until they moved into a nursing home. One of the deceased's children was a carer of the deceased, and lived in the property before the deceased had moved into the nursing home. As they were a carer, they were allowed to stay in the home after the deceased moved into the nursing home. One of the deceased's children was made sole executor and trustee of the estate. Under the will, the house was to be sold and divided among the surviving children. After probate was granted, the executor asked their sibling to move out of the property, so it could be sold, to which they refused. In the 20XX-XX financial year, the executor consulted a lawyer for the appropriate action. It took some time to resolve the associated matters. In the 20XX-XX financial year, soon after matters were resolved, the executor contacted a real estate agent to sell the property. The property was sold and will be settling in the 20XX-XX financial year.

Relevant legislative provisions: Income Tax Assessment Act 1997 section 104-10, | Income Tax Assessment Act 1997 subsection 118-130(3), | Income Tax Assessment Act 1997 section 118-195 and | Income Tax Assessment Act 1997 subsection 118-195(1).

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 before 20 September 1985. The property was not sold within 2 years of the deceased's date of death. You will only be able to disregard the capital gain from the sale of the property if the Commissioner extends the 2 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 a 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 The reason for the delay in selling the property was due to serious personal circumstances, where the one of the deceased's children refused to move out of the property. These delays prevented you from disposing of the property within the two year time limit. 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 the sale of the property has settled.