Are you entitled to the exemption under section 118-195 of the Income Tax Assessment Act 1997 (ITAA 1997)?
Yes Under section 118-195 of the ITAA 1997, a capital gain or capital loss you make from a CGT event that happens in relation to a dwelling or your ownership interest in it is disregarded if: • you are an individual and the interest passed to you as a beneficiary in a deceased estate, or you owned it as the trustee of a deceased estate; and • at least one of the items in column 2 and at least one of the items in column 3 of the table are satisfied. In your case: • the deceased acquired the ownership interest on or after 20 September 1985 and the dwelling 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 • the dwelling was, from the deceased's death until your ownership interest ends, the main residence of the spouse of the deceased immediately before the death. Therefore, one of the items in column 2 and one of the items in column 3 of the table are satisfied. Subsection 118-145(1) of the ITAA 1997 provides that if a dwelling that was a person's main residence ceases to be their main residence, they may choose to continue to treat it as their main residence.
You have chosen to apply the absence rule for the spouse. This ruling applies for the following period : Year ended DD/MM/20YY The scheme commenced on: DD/MM/20YY
On DD/MM/20YY, the deceased passed away. The deceased died intestate, and the estate has been administered by Public Trustee according to the rules of intestacy. The sole beneficiary under intestacy rules was the deceased's spouse (the spouse). As at date of death, the spouse had no capacity to administer the estate and no letters of administration were granted to them. At time of death the deceased owned a property at XXX (the property), which was acquired by the deceased on DD/MM/20YY. This was the deceased's main residence at time of death and has not been used to produce income. The property is less than 2 hectares. At time of death, the deceased's spouse was residing with them in the property, and they continued to reside there until they moved into aged care. On DD/MM/20YY, pursuant to an order of the State Civil and Administrative Tribunal, Public Trustee was appointed as full administrator of the spouse's estate. On DD/MM/20YY, the spouse moved into an aged care facility. You have confirmed you will apply the absence choice for the spouse from the date that they moved into the aged care facility.
On DD/MM/20YY, approval for Public Trustee to act in two different capacities (namely, as the administrator of the protected estate of the spouse and as the administrator of the estate of the deceased) was granted by the Supreme Court. On DD/MM/20YY, letters of administration were granted to Public Trustee. On DD/MM/20YY, a contract of sale was signed on the property. On DD/MM/20YY, settlement occurred.
Income Tax Assessment Act 1997 section 118-195 Income Tax Assessment Act 1997 section 118-145