Private ruling: CGT - deceased estate
Date of advice: 7 August 2025
Published: 27 October 2025
Ruling period: DD MM YY
Date scheme commenced: DD MM YY

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 YY, the deceased and their spouse acquired the property at XXXX. On DD MM YY, the deceased's spouse died. The property was their main residence from date of acquisition until the date of death. The deceased became a sole proprietor of the property via survivorship. On DD MM YY, the deceased died. The property was their main residence from date of acquisition until the date of death. The deceased's financial affairs were administered by XXXX prior to death who subsequently advised State Trustees Limited (STL) that the original will appointed the Person A, as sub-executor of the deceased's estate. However, no copy of the will can be found. Person A is the sole beneficiary of the estate. Person A was not able to administer the estate due to their circumstance and condition. Grant of Probate was granted to STL by the Supreme Court of State A on DD MM YY to administer the deceased's estate On DD MM YY, instructions regarding the sale of the property were sought in writing from Person A as the sole beneficiary of the estate. However, due to Person A's condition, they had no capacity to give instructions to STL regarding the property. Person A maintains that they want to take a transfer in relation to the property and have it sit vacant, and another family member can look after it. On DD MM YY, STL Genealogy Team were engaged to verify the person or persons entitled pursuant to intestacy provisions. On DD MM YY, a Genealogy Report was issued confirming Person A is the sole beneficiary entitled. Multiple follow ups were made between DD MM YY and DD MM YY in respect to Person A's VCAT hearing and capacity concerns. On DD MM YY, STL Client Legal were formally engaged to help progress the delay in administration. As a result, a legal opinion was provided on DD MM YY, determining that Person A could inherit from the estate. It was also advised that STL make application to VCAT for an administrator for Person A to provide instructions to sell the property. On DD MM YY, STL received an update from the VCAT relationship manager that the VCAT hearing is now being scheduled and STL will be informed soon. On DD MM YY, a request was issued by STL to obtain a capacity assessment for Person A. On DD MM YY, the capacity assessment report received which was also forwarded to VCAT for the upcoming hearing and the appointment of a financial administrator for DD MM YY. The decision to sell or transfer the property will be delayed until after the VCAT hearing. Another follow up was made by STL on DD MM YY to get an update regarding the VCAT hearing schedule. On DD MM YY, STL was informed that the hearing was scheduled for DD MM YY. VCAT order was obtained by STL on DD MM YY to act as administrator for Person A. On DD MM YY, STL was able to get instructions to sell the property from Person A. On DD MM YY, the sale process began by preparing the property for sale (i.e. inspection, cleaning and clearing of items/rubbish, gardening, maintenance, valuation, etc). This process continued right up to DD MM YY. The Auction Authority was given to a real estate agent on DD MM YY. The property was sold at auction on DD MM YY, with settlement occurring on the DD MM YY. The deceased did not have any ownership interest in any other properties. There were no capital improvements done on the property. The property was never used for income-producing or investment purposes nor it was available for rent. The property is less than 2 hectares in size.

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