Private ruling: CGT - deceased estate two year discretion
Date of advice: 13 September 2018
Published: October 2018
Ruling period: Year ended 30 June 2017
Date scheme commenced: 1 July 2016

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 you make on the disposal? | A1: Yes. Having considered your circumstances and the relevant factors, the Commissioner will allow an extension of time. Further information about this discretion can be found by searching 'QC 52250' on ato.gov.au

Relevant facts and circumstances: Probate of the deceased’s Will was granted to the executor, shortly after their passing. One of the assets of the deceased estate was the deceased’s main residence. The deceased did not treat any other property as their main residence during their ownership period and the property had not been used to produce assessable income during this time. An application was made to the Courts by one of the beneficiaries of the estate to vary the Will. They continued to reside at the property as their main residence. The court issued orders that the beneficiary was to vacate the property and that it was to be sold. The beneficiary did not comply with the order and a second application was made to the courts for further orders. During this period the executor passed away and a new executor was assigned by the courts. The beneficiary that was residing at the dwelling was served with a second order to vacate the property, in which they complied. The property was placed on the market for sale and sold at action soon after.

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