Private ruling: Extension of time - capital gains tax (CGT) small business concessions
Date of advice: 8 January 2026
Published: 2 March 2026
Ruling period: Year ended 30 June 2026 | Year ended 30 June 2027
Date scheme commenced: 1 July 2025

Ruling: Q1: Will the Commissioner grant an extension of time for the sale of the three farm properties under subsection 152-80(3) of the Income Tax Assessment Act 1997 (ITAA 1997) until XX? | A1: Yes

Relevant facts and circumstances: The deceased conducted a farming business under a Partnership (the Business) which consisted of the two spouses on the 3 farming properties. All 3 properties are farmland, but the one of the farming properties included an employment accommodation building. The deceased passed away on XX May 20XX. Probate was granted on X September 20XX. There are 3 executors, the spouse of the deceased and the 2 adult children of the deceased. The main executor who is the spouse of the deceased, lives 15 minutes from the farm properties. Two of the executors who are the adult children of the deceased and beneficiaries live far away from the farming properties. The tenants on the property included an employee of the farm and their family members who resided at the farm employee residence and worked on the farms. There was a tenancy dispute. The tenants were provided by the executor via their legal representative a letter regarding eviction and to remove animals from the unapproved farming on XX September 20XX. The real estate agent engaged was managing the sales and associated paperwork and requirements in to assist in preparing the properties for sale. The real estate agent assisted in the process to sell the property with the employee residence on it and had engaged with REIQ regarding this but were informed on XX September 20XX the property is unable to be sold due to the property's ongoing eviction dispute as the tenants had not vacated. On the XX October 20XX a Form 12 Notice to Leave letter was sent to the tenants by the executors. On the XX November 20XX the tenant provided a letter in response to the notice to leave to the executors regarding her being the de-facto and dependant of the deceased. The tenant made a further claim of possession for all of the farming properties. On the XX November 20XX a letter of response was sent regarding the estate claim to the tenant. On the XX December 20XX the tenant and her family had not vacated the property. The main executor who was the spouse inspected the property and submitted a QCAT claim X January 20XX. QCAT was involved with 3 hearings. On the X June 2025 QCAT decision was to cease the rental agreement and issue a warrant of possession. During this time the tenant also filed for a stay decision and to re-open the matter. After the tenant filing to re-open the stay application twice, QCAT refuses the re-opening the stay application on XX June 20XX. On the XX of June 20XX the tenant requested extension for vacating the properties. The tenant was removed from the property by police as per Warrant of Possession enactment on the XX June 20XX. The properties have had several break ins and have lost many items of equipment on XX June 20 XX and X July 20XX. After providing times for the tenant to remove their remaining possessions between XX June and XX July 20XX there remained large amounts of possessions on the farm property. Due to this the executor sought further QCAT orders. The executors are currently cleaning out the employee residence property to be ready for sale as well as managing repairs for the damage caused by the past tenant. The executors will list the properties for sale as soon as the damages have been repaired enough to allow the properties to be sold.

Relevant legislative provisions: Income Tax Assessment Act 1997 section 152-80 | Income Tax Assessment Act 1997 subsection 152-80(3)

Reasons for decision: Summary: Section 152-80 of the ITAA 1997 allows either the legal personal representative of an estate or the beneficiary to apply the CGT small business concessions in respect of the sale of the deceased's asset in certain circumstances. Under paragraph 152-80(1)(d) of the ITAA 1997, a CGT event must happen in relation to the CGT asset within two years of the individual's death. The Commissioner has the discretion to extend the time limit under subsection 152-80(3) of the ITAA 1997. | Detailed Reasoning - Factors Commissioner considers whether to allow a longer period:: In determining whether to allow a longer period, the Commission will consider a range of factors such as: • whether there is evidence of an acceptable explanation for the period of extension requested and whether it would be fair and equitable in the circumstances to provide such an extension • whether there is any prejudice to the Commissioner if the additional time is allowed • whether there is any unsettling of people, other than the Commissioner, or of established practices • the need to ensure fairness to people in like positions and the wider public interest • whether there is any mischief involved • the consequences of the decision | Detailed Reasoning - Application to circumstances: Under paragraph 152-80(1)(d) of the ITAA 1997, a CGT event must happen in relation to the CGT asset within two years of the individual's death. In these circumstances the CGT event, which is the sale of the property, has not occurred within the two years of the deceased's death. The executors have demonstrated the preparation the properties for sale during this period while engaging with their real estate agent, lawyers and QCAT to manage property disputes with the tenant and progressing the repairs from property damage. There were circumstances which were out of the executor's control which included tenancy disputes, property damage and break ins to the properties that have caused delays in the ability to prepare properties for sale with the period and in turn caused delay in the CGT event occurring. The Commissioner grants extension of time till the XX under subsection 152-80(3) ITAA 1997 for the properties.