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Safe harbour to extend the two year period to dispose of dwellings from a deceased estate

Andrew Aitken and Camille Broadhurst

Where a dwelling was used as the deceased’s main residence (but not for producing income) just before they died and disposed of within 2 years from the deceased’s date of death, any capital gains and capital losses triggered by the disposal are disregarded.

Where the disposal of the main residence was delayed, trustees and/or beneficiaries could apply for the Commissioner to extend the 2 year period.

Now, with the introduction of Practical Compliance Guideline 2019/5 on 27 June 2019, trustees and beneficiaries can assume that the 2 year period is extended for a further 18 months where all of the following circumstances apply:

  • There are extenuating circumstances outside of the trustee/beneficiary’s control that have taken time to address;
  • The main residence was listed for sale as soon as those extenuating circumstances were addressed;
  • The sale of the main residence settled within 12 months of being listed for sale;
  • There are extenuating circumstances inside the trustee/beneficiary’s control that have no material effect on the delay to dispose of the main residence; and
  • The trustee/beneficiary only require a further 18 months to dispose of the main residence.

Extenuating circumstances outside of the trustee/beneficiary’s control include:

  • Where a Will or ownership of the main residence is challenged;
  • Where a life interest is granted over the main residence;
  • Where the estate is especially complex to administer; and
  • Where a contract for sale of the main residence falls through for reasons outside of the trustee/beneficiary’s control.

They expressly do not include any voluntary inactivity on the part of the trustee/beneficiary.

If the trustee/beneficiary do not satisfy the safe harbour provisions, they can still apply to the Commissioner to exercise their discretion to extend the 2 year period. However, exercise of that discretion will continue to weigh up how much of the delay is due to circumstances outside of the trustee/beneficiary’s control.

If you would like more information on disposing of real property and the capital gains tax implications of the same, please contact Camille Broadhurst of our Sydney office on 02 8987 0000.

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