1 Will the Commissioner exercise his discretion under subsection 152-80(3) of the Income Tax Assessment Act 1997 (ITAA 1997) to extend the 2-year time limit in paragraph 152-80(1)(d) of the ITAA 1997 until a specified date?
Yes. Having considered all relevant factors, the Commissioner will exercise discretion under subsection 152-80(3) of the ITAA 1997 to extend the time limit in paragraph 152-80(1)(d) of the ITAA 1997 for disposal until a specified date. Further information for you to consider The private ruling has been limited to the question requested upon application which is whether the Commissioner can exercise discretion under subsection 152-80(3) of the ITAA 1997 to allow an extension of the two-year period. Therefore, the Commissioner has not considered whether the Deceased was in fact entitled to the small business CGT concessions. Further information on 'small business CGT concessions' can be found on our website by searching QC 22655. This ruling applies for the following periods : Year ending 30 June 20XX Year ending 30 June 20YY The scheme commenced on: 1 July 20XX
Background Person A (you) is the partner of the deceased (Person B), who passed away. Person B established Company A as a construction manufacturing and supply business. Family and estate matters Person B was survived by you, and their children. Under Person B's last will, you were the primary beneficiary and received majority of the assets, including shares in Company A. Person B's children indicated, through correspondence between legal representatives, their intention to lodge a family provision claim in the Supreme Court (the Challenge) disputing the terms of Person B's will. Following Person B's passing, you were advised by your solicitors not to take any action regarding Person B's assets, including selling the shares in Company A or entering into any preliminary sale process, due to the anticipated challenge by the children. This caution was issued to ensure the proper preservation of the estate until the Challenge was resolved. Family provision challenge The Challenge was settled through mediation, with consent orders signed by all parties on the relevant day. This resolution occurred approximately more than a year after Person B's death. Post challenge sale process
You formally engaged a sales agent to begin the process of finding a purchaser for Company A. Shortly after, several potential purchasers were identified. Negotiations commenced with one prospective purchaser who intended to complete the purchase before the end of a specified year; however, the sale did not proceed. You have continued to seek prospective purchasers. Negotiations and due diligence activities are ongoing. Despite this, it remains uncertain whether a sale can be finalised before the two-year anniversary date of Person B's death. Factors affecting the sale Several factors have limited the pool of potential purchasers for Company A. Estate preservation obligations Your decision not to dispose of Person B's shares in Company A immediately after their death was based on legal advice intended to ensure you fulfilled your duty as legal personal representative. You were advised that selling the shares before the Challenge was resolved could expose you to personal liability for failing to safeguard the estate, and for not achieving maximum value for its assets.
You have provided a copy of last will and testament of Person B, first notification of estate challenge, post probate letter, post mediation letter and signed consent orders from the children.
Income Tax Assessment Act 1997 section 152-80 Income Tax Assessment Act 1997 paragraph 152-80(1)(d) Income Tax Assessment Act 1997 subsection 152-80(3)