Private ruling: Commissioner's discretion - deceased estate
Date of advice: 23 April 2026
Published: 13 July 2026
Ruling period: Year ending DD/MM/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 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: On DD/MM/20YY, the deceased was found by police.. The deceased left a will (the will) which appointed their spouse as executor and trustee, but if they were not able or willing to act as executor it appointed Person A as executrix and trustee. The deceased's spouse pre-deceased them, so Person A assumed the role of executrix and trustee. The will named the deceased's spouse as beneficiary of the estate, or if they pre-deceased them, bequeathed the estate to Charity A. At time of death, the deceased owned a dwelling at XXX (the property), which was their main residence. The deceased acquired the property in 19XX jointly with their late spouse and acquired their share of the property when they passed in MM/20YY, through right of survivorship. The property was not used to produce assessable income. The property is less than X hectares. On DD/MM/20YY, Person A was notified of the deceased's death. On DD/MM/20YY, Person A contacted the funeral directors who provided a copy of the death certificate. On DD/MM/20YY, Person A requested the original will from Lawyer A. The clearing of the property was left solely to Person A, and as they had their own commitments, they were only able to attend the property when they had spare time at weekends. The deceased was a hoarder and there were X rooms of the house and X sheds full of rubbish and clutter. On DD/MM/20YY, Person A applied for probate. On DD/MM/20YY, Person A was granted probate. On DD/MM/20YY, a dispute starts between Person B and the sole beneficiary listed in the will, Charity A. On DD/MM/20YY, an initial court hearing took place. On DD/MM/20YY, each party submitted a position paper. On DD/MM/20YY, Person B and Charity A attended mediation before a court registrar. On DD/MM/20YY, a court directions hearing took place. On DD/MM/20YY, both parties signed a heads of agreement document. On DD/MM/20YY, the Supreme Court ordered that the deceased's estate be divided, with Person B to receive XX% and Charity A XX%. In MM/20YY, Company A were engaged to attend the property and remove all left over possessions, and Company B were engaged to tidy the garden in preparation for sale. On DD/MM/20YY, a contract of sale was signed. On DD/MM/20YY, settlement occurred.

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