Will the Commissioner, pursuant to section 152-80(3) of the Income Tax Assessment Act 1997 (ITAA 1997), allow an extension of time under paragraph 152-80(1)(d) of the ITAA 1997 to allow the deceased estate to access the small business capital gains tax concessions?
Yes. Having considered the relevant facts, the Commissioner will exercise his discretion to extend the 2-year time limit in paragraph 152-80(1)(d) of the ITAA 1997 to dispose of the asset. The delay in the sale of the asset was due to various factors outside the control of the taxpayer, and the Commissioner considers that there is no mischief involved, and it would be fair and equitable in these circumstances to grant the extension. This ruling applies for the following period : Year ended 30 June 20XX The scheme commenced on: 1 July 20XX
A, B and C purchased a licence and other assets and began a business using them. They continued that business for around 16 years. During those 16 years, B passed away, and C and D were married. After 16 years, C was diagnosed with a terminal illness, and A was too old to continue the work required for the business, so they began leasing the licence to a third party. Sometime after the licence was leased to the third party, C passed away. D is the trustee and a beneficiary to their estate. C bequeathed their interest in the licence to D. A and D initially agreed to abide by C's last wishes; however, a dispute arose whereby A reneged. A asserted that they owned all of the licence and it's associated entitlements, claiming it was held as joint tenants, such that, the doctrine of survivorship applied upon C's death. The dispute proceeded to litigation, and the matter became protracted. Delays were experienced due to COVID and the restrictive administrative measures implemented.
More than 2 years after C's death, the court delivered its decision, finding wholly in favour of D. The court declared that the estate of C was entitled to receive a one-half interest in the licence and its associated entitlements. The court ordered that A do all things reasonably necessary to facilitate the transfer the estate's interest in the licence and its entitlements to D. D as trustee of C's estate, always intended the one-half portion of the licence and entitlements to a third party. The entitlements under the licence have been put up for sale at the time of this ruling and are expected to be sold within 6 months.
Income Tax Assessment Act 1997 section 152-80