Private ruling: Commissioner's discretion - deceased estate
Date of advice: 8 July 2024
Published: 19 August 2024
Ruling period: Year ending 30 June 20XX
Date scheme commenced: 1 July 2020

Ruling: Q1: Will the Commissioner exercise the discretion under section 118-195 of the Income Tax Assessment Act 1997 to allow an extension of time for you to dispose of your ownership interest in the dwelling and disregard the capital gain or capital loss you made on the disposal? | 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 ato.gov.au for 'QC 66057'.

Relevant facts and circumstances: The deceased passed away on DD MM 20YY. The dwelling is located at XXXX (the property). The deceased acquired their initial 50% share in the property before 20 September 1985, and acquired the remaining 50% share after 20 September 1985. The property was the main residence of the deceased just before they passed away and was not used to produce assessable income at that time. The property was situated on less than two hectares of land. The property was initially scheduled to be sold via auction, with the auction to be held on DD MM 20YY. On DD MM 20YY, a letter was received from a solicitor representing the owners of a neighbouring property claiming adverse possession of a parcel of land included in the title of the property. The solicitor for the executor conducted a survey of both properties on DD MM 20YY. The neighbour withdrew their claim on DD MM 20YY. The property was relisted on the real estate market, with the auction being held on DD MM 20YY. The property was successfully sold, with settlement occurring on DD MM 20YY. The property has not been used to generate assessable income between the date the deceased passed away and when it was sold.

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