Will the Commissioner exercise his discretion under subsection 152-80(3) of the Income Tax Assessment Act 1997 (ITAA 1997) and allow an extension of time to the two-year period to xx February 20xx for the disposal of the property?
Yes. This ruling applies for the following period : Year ended 30 June 20XX The scheme commenced on: 1 July 20XX
The deceased carried on a business as a sole trader. The deceased passed away on XX February 20XX. The deceased owned a property. The deceased's last Will was dated XX February 20XX. Under the deceased's last Will, the business has remained under administration due to the complexity of the deceased's affair, including the involvement of the deceased's children and the requirement that the estate be administrated on their behalf until they each reach X years of age, as well as the blended family structure. The estate intended to sell the property as part of the business wind-up. The property was listed for sale on XX September 20XX, approximately X months after death. The property was sold XX July 20XX with settlement occurring on XX October 20XX. The property was sold more than three years beyond the time of death due to limited market for the property type in the region at the time, soft market conditions, and uncertainty caused by COVID-19.
Income Tax Assessment Act 1997 section 152-80 Income Tax Assessment Act 1997 subsection 152-80(3)
Section 152-80 of the ITAA 1997 allows either the legal personal representative of an estate or the beneficiary to apply the capital gains tax (CGT) small business concessions in respect of the sale of the deceased's asset in certain circumstances. Specifically, the following conditions must be met: • the asset transfers to the legal personal representative or passes to a beneficiary • the deceased would have been entitled to reduce or disregard a capital gain from a CGT event happens under small business concessions, immediately before their death • a CGT event occurred within two years of the deceased's death, with the exception of subsection 152-80(3) of the ITAA 1997, where the Commissioner can allow an extension of time. The two-year time limit prescribed may be extended by the Commissioner in certain circumstances. In determining whether a longer period will be allowed, the Commissioner will consider a range of factors such as:
• whether there is evidence of an acceptable explanation for the period of the extension requested and whether it would be fair and equitable in the circumstances to provide such an extension • whether there is any prejudice to the Commissioner if the additional time is allowed, however the mere absence of prejudice is not enough to justify the granting of an extension • whether there is any unsettling of people, other than the Commissioner, or of established practices • fairness to people in like positions and the wider public interest • whether there is any mischief is involved and • the consequences of the decision. Application to your circumstances
After taking into consideration the complexity of the deceased affairs, which included the deceased's Will involvement of the deceased's children and the requirement that the estate be administered on their behalf until the reach the age X, and difficulty of market condition, rural area and uncertainty with COVID-19 period, the Commissioner will allow an extension of time beyond two years in accordance with subsection 152-80(3) of the ITAA 1997.