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?
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'. 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, leaving a will dated DD/MM/20YY and a codicil dated DD/MM/20YY. As at date of death, the deceased owned a property at XXX, which was their main residence and not used to produce assessable income. On or around DD/MM/20YY, the deceased transferred half of their ownership interest in the property to Person A. The property remained vacant from date of death until settlement. The property was less than 2 hectares. The will appointed the Person B as executor, however the codicil revoked this clause, appointing Person B and Person A as joint executors. The codicil also had a clause devising the deceased's remaining interest in the property be left to Person A. The will bequeathed a sum of $XXX to the deceased's spouse provided they survived them for XX days. The residue of the estate was to be split between Person C and Person D. On DD/MM/20YY, after legal advice was sought, Person A renounced probate of the will and codicil and the remaining executor instructed Company A to apply for grant of probate for the estate as the administrator.
On DD/MM/20YY, the court granted probate to Company A on the basis that it believed the deceased lacked testamentary capacity at the time of making the codicil in 20YY. On DD/MM/20YY, Person A brought proceedings to revoke probate on the grounds that the codicil should have been proven. Person A submitted that they owned a half interest in the Property and would have acquired the other half interest under the terms of codicil. Further to this, Company A sought to inform the court of information about Person A, by filing an application to reopen the matter. On DD/MM/20YY, the court passed judgement which found: • Person A was unsuccessful in their application and the grant was not revoked • Company A was unsuccessful in its application to reopen the matter to introduce the information on Person A and should not have done so. On DD/MM/20YY, Person A lodged an appeal. On DD/MM/20YY, the court ordered the appeal be allowed on the basis there was a case for investigation. The proceedings were adjourned for further directions to the Trusts, Equity and Probate List.
On DD/MM/20YY, the court ordered, that mediation was firstly to be attended by all parties and their legal representatives. On DD/MM/20YY, mediation was attended by all parties and a settlement was reached to minimise further legal expenditure. On DD/MM/20YY, the court ordered Company A to list the property for sale and upon settlement pay XX% of the proceeds less costs of sale and capital gains tax to Person A. The terms also specified the property was to be sold by DD/MM/20YY. On DD/MM/20YY, a contract of sale was signed. On DD/MM/20YY, settlement occurred.
Income Tax Assessment Act 1997 section 118-195