Private ruling: Commissioner's discretion - deceased estate
Date of advice: 22 July 2022
Published: October 2022
Ruling period: Year ending 30 June 20XX
Date scheme commenced: 1 July 20XX

Ruling: Q1: Will the Commissioner grant an extension to the 2-year period to dispose of the Property? | 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 'QC 66057' on ato.gov.au.

Relevant facts and circumstances: Your parent (Parent A) owned a property (the Property). The property is less than 2 hectares in size. The Property includes a dwelling and a large shed. Parent A died several years ago. Parent B died several months later. Following the grant of probate for Parent A's estate, the property was transferred to you both as beneficiaries. The Property was listed for sale sometime later. An offer was accepted the month after the Property was put on the market for sale. The potential purchaser obtained a survey report. This report showed that there was a significant encroachment by the dwelling on the Property onto the adjoining land. The adjoining land is Crown land. After the encroachment was discovered, the purchaser withdrew from the sale. Several further prospective sales failed. You then sought to acquire the land on which the encroachment stood from the Crown. The Crown did not agree, amongst other things because the land was the subject of a legal claim. You contacted the lawyers acting for the claimants and they agreed to lodge an application in an attempt to resolve the legal claim at your cost. Relevant parties maintained the court did not have jurisdiction and advised they were not willing to concede regarding the area of encroachment. Earlier this year, you were advised that new solicitors had been appointed by the applicants. As a result, the applicants were no longer prepared to pursue the interlocutory application any further. This meant that any prospects of overcoming the encroachment were quashed. The property was sold recently, subject to encroachment.

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