Private ruling: Capital gains tax - deceased estate - 2 year discretion
Date of advice: 1 April 2019
Published: May 2019

Ruling: Q1: Will the Commissioner allow an extension of time for you to dispose of your ownership interest in the dwelling and disregard the capital gain you make on the disposal? | A1: Yes. Having considered your circumstances and the relevant factors, the Commissioner will allow an extension of time. Further information about this discretion can be found by searching 'QC 52250' on ato.gov.au


Relevant legislative provisions: Income Tax Assessment Act 1997 section 104-10 | Income Tax Assessment Act 1997 subsection 118-130(3) | Income Tax Assessment Act 1997 section 118-195 | Income Tax Assessment Act 1997 subsection 118-195(1)


Relevant Facts: The deceased acquired a dwelling (The dwelling) | The deceased passed away in 20XX (The deceased) | The dwelling was the deceased’s main residence. | The deceased left a number of children, ‘A’ and ‘B’ who were under 18 at the passing of the deceased | The deceased’s will contained a clause which prevented the sale of the dwelling until ‘A’ attained the age of ‘X’. | ‘A’ attained the age of X on in 20XX. | The will of the deceased also contained a clause which required that the dwelling be used to produce income to offset the upkeep of the property and for living expenses of ‘A’ and ‘B’. | The dwelling has been used to produce assessable income from 20XX. | ‘A’ and ‘B’ had considered moving into the property once ‘A’ had attained the age of ‘X’. | In 20XX the property manager indicated to the existing tenant that their lease would not be renewed. | The tenant made an offer to purchase the dwelling, which was accepted by ‘A’ and ‘B’. | Settlement occurred in 20XX.