Private ruling: Capital gains tax – deceased estate – commissioner’s discretion to extend the two-year period – main residence exemption
Date of advice: 1 February 2019
Published: May 2019
Ruling period: Year ending 30 June 2019
Date scheme commenced: 1 July 2018

Ruling: Q1: Will the Commissioner allow a n extension of time to XX November 20XX for you to dispose of your ownership interest in the dwelling and disregard the capital gain you make on the disposal? | A1: Yes Having considered your circumstances and the relevant factors, the Commissioner will allow an extension of time to dispose of your interest in the dwelling. Further information about this discretion can be found by searching 'QC 52250' on ato.gov.au

Relevant facts and circumstances: The deceased and their spouse purchased a dwelling post-CGT as tenants in common. The deceased’s spouse died in 19XX. The deceased and their spouse have two children. The deceased and their children became registered as proprietors of the dwelling pursuant to their roles as executors of the deceased’s spouse’s estate. The dwelling was never rented out and was the deceased’s principle place of residence until their death in 20XX. One of the children also occupied part of the dwelling as their place of residence up until recently. Due to a legal dispute a caveat was lodged against the title to the dwelling. It was appropriate an independent person be appointed administrator of the deceased’s estate. Letters of Administration was granted to another party. The dispute was settled and details were provided in relation to how the proceeds of the sale of the dwelling were to be applied. The caveat prevented the sale of the dwelling after the deceased’s death. The caveat was withdrawn on the settlement of the sale of the dwelling and when final payment was made. The dwelling was been sold as part of the finalisation of the administration of the estate. The dwelling is on land that is less than two hectares. The dwelling was sold with settlement occurring more than two years after the deceased’s death.

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 | Income Tax Assessment Act 1997 subsection 118-195(1)