Private ruling: CGT - deceased estates
Date of advice: 25 February 2021
Published: April 2021
Ruling period: Year ended 30 June 20XX | Year ended 30 June 20XX
Date scheme commenced: 1 July 20XX

Ruling: Q1: Will the property 'pass' in accordance with section 128-20 of the Income Tax Assessment Act 1997 (ITAA 1997), such that section 128-15 of the ITAA 1997 will apply to disregard any capital gain or loss for the Trustee of the Trust and the beneficiary determines their relevant cost base in accordance with subsection 128-15(4)? | A1: Yes. Division 128 of the ITAA 1997 deals with CGT consequences that arise from a deceased estate. Any capital gain or loss made by a trustee of a deceased estate or legal personal representative (LPR) is disregarded under section 128-15 of the ITAA 1997 if an asset of the estate 'passes' to a beneficiary in accordance with section 128-20. The trustee of a testamentary trust is treated in the same manner as the trustee of a deceased estate or LPR for the purposes of applying Division 128 of the ITAA 1997 (PS LA 2003/12). The trustee for the Trust, will be treated for the purposes of subsection 128-15(3) as an LPR at the time when the property is transferred to a beneficiary as provided for in the deceased's will. Therefore section 128-15 applies to disregard any capital gain or loss made by the Trustee of the Trust. As outlined in item 3 of subsection 128-15(4) the beneficiary will have a cost base of market value on the day the deceased died.

Relevant facts and circumstances: The deceased passed away. The deceased left a will. Probate was granted to the executor of the estate. The will noted that the property be held on trust for the benefit of the beneficiary. The Trust was created by the will of the deceased. The beneficiary is the sole primary beneficiary and the sole capital beneficiary. Pursuant to legal advice received by the trustee in respect of the proper implementation of the deceased's will, whilst the terms of the subject testamentary trust existed within the deceased's will, the trustee settled the Trust in their capacity as the executor of the deceased's estate to hold the property and cash held at the bank. The current assets of the Trust are the property and cash held at the bank. Immediately prior to the deceased passing the property was the deceased's main residence. The property is on a subdivided portion of the land that the deceased purchased in pre-CGT. The remainder of the land was split off into separate properties. The property remains a pre-CGT asset. The beneficiary resided in the dwelling prior to the deceased's passing and continued to reside there until the dwelling was leased out in September 20##, at this point the beneficiary resided in a studio in the backyard of the property until the house on the property ceased to be leased in June 20##. From June 20## the beneficiary resumed residing at the dwelling.

Relevant legislative provisions: Income Tax Assessment Act 1997 section 102-20 | Income Tax Assessment Act 1997 section 104-10 | Income Tax Assessment Act 1997 section 128-15 | Income Tax Assessment Act 1997 section 128-20 | Income Tax Assessment Act 1997 Division 128