Private ruling: CGT - deceased estate extension
Date of advice: 25 August 2016
Published: September 2016
Ruling period: Year ending 30 June 2017 | Year ending 30 June 2018
Date scheme commenced: 1 July 2016

Ruling: Q1: Will the Commissioner exercise his discretion under subsection 118-195(1) of the Income Tax Assessment Act 1997 (ITAA 1997) and allow an extension of time to the two year period? | A1: Yes.

Relevant facts and circumstances: The deceased passed away. The property was their main residence and was never used to produce assessable income. The deceased's will, contained a right to occupy clause on the dwelling. You were not able to access the property prior to this date. Once access was gained you were able to see the extent of the work required to prepare the house for sale. The deceased had commenced extensive renovations on the property, without completion. Works are underway to rectify these renovations. You anticipate having the property on the market in the coming months.

Relevant legislative provisions: Income Tax Assessment Act 1997 Subsection 118-195(1) .

Reasons for decision: Summary: Subsection 118-195(1) of the Income Tax Assessment Act 1997 (ITAA 1997) states that if you are an individual who owns a dwelling in a capacity as trustee of a deceased estate, then you are exempt from tax on any capital gain made on the disposal of the property if: • the property was the deceased's main residence just before the deceased's death and was not then being used for the purpose of producing assessable income, and • your ownership interest in the dwelling ends within two years of the deceased person's death, or • the dwelling was, from the deceased's death until your ownership interest ends, the main residence of one or more of the following persons: • the spouse of the deceased immediately before death, or • an individual who had a right to occupy the dwelling under the deceased's will, or • an individual who brought about the CGT event and the ownership interest in the dwelling had passed to that individual as beneficiary. In your case, the deceased's main residence will not be sold within the two year time limit. The deceased's will, contained a right to occupy clause. The property will not been sold within the two year time limit. Therefore, you will only be able to disregard the capital gain from the sale of the property if the Commissioner grants an extension to the two year time limit. The Commissioner can exercise his discretion in situations such as where: • the ownership of a dwelling or a will is challenged; • the complexity of a deceased estate delays the completion of administration of the estate; • a trustee or beneficiary is unable to attend to the deceased estate due to unforeseen or serious personal circumstances arising during the two year period; or • settlement of a contract of sale over the dwelling is unexpectedly delayed or falls through for circumstances outside the beneficiary or trustee's control In your case, the delay in disposal of the dwelling has been due to the right to occupy specified in the will. Further, your ownership interest will not end within two years due to the works the deceased had commenced on the property. Having considered the relevant facts, the Commissioner is able to apply his discretion under subsection 118-195(1) of the ITAA 1997 and allow an extension to the two year time limit.