Private ruling: Commissioner's discretion - deceased estate
Date of advice: 27 January 2022
Published: April 2022
Ruling period: Year ending 30 June 20XX
Date scheme commenced: 17 October 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 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 66057' on ato.gov.au

Relevant facts and circumstances: The deceased owned a dwelling (the Dwelling). The deceased passed away sometime after 20 September 1985. The Executors of the Estate are Person A and Person B. The beneficiaries of the Estate are the deceased's children Person A, Person B and Person C (You) The deceased's spouse continued to reside at the Dwelling after the deceased death. The deceased provided their spouse a right to reside at the Dwelling in their will. The deceased's spouse passed away unexpectedly a short time later. The spouse was living in the Dwelling at the time of death. The family suffered severe emotional distress from the unexpected death of the deceased's spouse, who was only supposed to be in hospital for the day. COVID restriction in place at the time meant that You could not even see them during their final hours. After making the arrangements for the spouse, you set about selling the dwelling. Your efforts were further hampered by the COVID restrictions, and your ability to meet, discuss and consult with relevant parties were limited. You thought that the Dwelling had been sold, however the sale fell through. A dispute between the beneficiaries arose but was resolved through reconciliation XX months after the sale had fallen through. The dwelling was sold two months later. The contract was signed and settlement will occur shortly after.

Relevant legislative provisions: Income Tax Assessment Act 1997 section 104-10 | Income Tax Assessment Act 1997 section 118-195