Private ruling: CGT - deceased estate - right to occupy
Date of advice: 10 June 2021
Published: August 2021
Ruling period: Year ended 30 June 20XX
Date scheme commenced: 1 July 20XX

Ruling: Q1: Will the Commissioner allow an extension of time for you to dispose of your ownership interest in the dwelling and disregard the capital gain or 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 'QC 52250' on ato.gov.au | Q2: Is the capital gain disregarded, notwithstanding the fact that some of the beneficiaries of the Deceased Estate are non-residents? | A2: Yes. The Commissioner has provided the discretion in question 1 of the private ruling and disregarded the capital gain or loss. It doesn't matter if the beneficiaries are resident or non-residents of Australia for income tax purposes when it comes to inheritance of Taxable Australian Property. Further information about deceased estate and capital gains tax can be found by searching 'QC 52245' on ato.gov.au | Q3: Is the Trustee liable to pay tax on any part of the capital gain from the disposal of the property under any other provisions of tax law? | A3: No. The capital gain has been disregarded by the Commissioner. However, the trustee will be liable for tax if interest accrued on the proceeds of the sale of the property and was paid to a non-resident beneficiary.

Relevant facts and circumstances: The deceased passed away and left a will, with probate granted. The deceased purchased a property as joint tenants pre capital gains tax (CGT). The deceased's will granted a right to occupy the property subject to certain conditions. The dwelling was occupied as their main residence at all time under the occupation right, until they passed away on XX Month 20XX. The property was not used for income producing purposes. The property was placed on the market and sold with settlement occurring. The proceeds from the sale of the property are to be divided amongst various beneficiaries in accordance with the will of the deceased.

Relevant legislative provisions: Income Tax Assessment Act 1997 subsection 118-195(1) | Income Tax Assessment Act 1997 section 885-10(1)(b) | Income Tax Assessment Act 1997 section 885-20


This ruling applies for the following period: