Private ruling: Commissioner's discretion - deceased estate
Date of advice: 15 May 2026
Published: 20 July 2026
Ruling period: Year ended 30 June 20YY
Date scheme commenced: DD MM 20YY

Ruling: Q1: Will the Commissioner exercise the discretion under section 118-195 of the Income Tax Assessment Act 1997 (ITAA 1997) to allow an extension of time for you to dispose of your ownership interest in the dwelling (subject to the 2-hectare limitation) and disregard the capital gain or capital 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 ato.gov.au for 'QC 66057'.

Relevant facts and circumstances: In MM 20YY, the deceased acquired a property located at XXX XXX (the property). On DD MM 20YY, the deceased passed away. The property is less than two hectares in size. The property was the deceased's main residence just before their passing. The property was never used for the purpose of producing income during the deceased's ownership. The deceased was survived by their two children, Person 1 and Person 2. Under the Will, the estate was to be divided equally between the children. After the deceased passing, Person 1 lived in the property as their main residence. Delay in obtaining probate It took X months to obtain the original copy of the Will from the deceased solicitors. Although the lawyer had the probate documents to file from around MM 20YY, they weren't filed until DD MM 20YY this may have been caused by a back log in due to COVID-19. Delay in selling the property The delay in the sale of the property was due to family conflict with both children obtaining separate solicitors and a lengthy legal dispute.

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