Private ruling: Capital gains tax - deceased estate - 2 year discretion
Date of advice: 30 January 2019
Published: May 2019
Ruling period: Year ended 30 June 2018
Date scheme commenced: 1 July 2017

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 legislative provisions: Income Tax Assessment Act 1997 section 104-10 | Income Tax Assessment Act 1997 subsection 118-130(3) | Income Tax Assessment Act 1997 section 118-195 | Income Tax Assessment Act 1997 subsection 118-195(1)


Relevant facts: The deceased acquired a dwelling (the dwelling). | The deceased passed away in 2014. | The dwelling had been the deceased’s main residence prior to passing away. | The dwelling has not been used to produce income. | The deceased’s will contained a provision which allowed your stepparent, ‘A’ to remain living in the property provided certain conditions were met. | The deceased’s will appointed their solicitor, ‘B’ as executrix. | A grant of probate was issued in 2015. | The deceased suffered from a medical condition. | There were a number of wills left by the deceased. | A dispute between the deceased’s children concerning the validity of the wills resulted in delays in administering the estate. | The delays in administering the estate resulted in you obtaining legal representation and ultimately in commencing legal proceedings to have to the executor removed and a substituted executor appointed. The order was made in 2017. | The dwelling was placed on the market a short time later and settlement occurred in 2017.