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ATO Interpretative Decision

ATO ID 2004/734 (Withdrawn)

Income tax
Capital gains tax: main residence exemption: right to occupy dwelling under deceased's will

Attention This ATO ID is withdrawn. Guidance on the basis of the decision in this ATO ID can be found in the Guide to capital gains tax (NAT 4151).
Attention This document has changed over time. View its history.
FOI status: may be released
Status of this decision: Decision withdrawn 21 July 2017.

CautionCAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.

This ATOID provides you with the following level of protection:

If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.


Issue

Is a right to occupy a dwelling granted by the court under the Family Provision Act (NSW) 1982 (varying the terms of a deceased individual's will), granted 'under the will of the deceased' for the purposes of applying the main residence exemption in subsection 118-195(1) of the Income Tax Assessment Act 1997 (ITAA 1997)?

Decision

Yes. Subsection 14(1) of the Family Provision Act 1982 (NSW) provides that the court order takes effect as if it had been made as a codicil to the deceased individual's will. It is therefore considered that the right to occupy the dwelling granted by the court was made 'under the deceased's will' for the purposes of applying the main residence exemption in subsection 118-195(1) of the ITAA 1997.

Facts

The deceased acquired a dwelling before 20 September 1985. The dwelling was the deceased's main residence until the time of their death in December 1999. The deceased's child also lived in the dwelling prior to the deceased's death.

Under the deceased's will the dwelling was to be sold by the trustees of the deceased's estate and the proceeds held on trust for the benefit of the deceased's children and grandchildren.

The deceased's child was dissatisfied with the terms of the will and lodged a claim under the Family Provision Act 1982 (NSW). In accordance with that Act the court ordered that the deceased's child be granted a right to reside in the property from the date of the deceased's death until the dwelling was sold.

The trustee sold the dwelling in April 2004 and made a capital gain.

Reasons for Decision

Subsection 118-195(1) of the ITAA 1997 allows a trustee of a deceased estate to disregard a capital gain or loss from a dwelling that a deceased person acquired before 20 September 1985 if:

·
 the trustee's ownership interest in the dwelling ends within two years of the deceased person's death, or
·
 from the deceased's death until the trustee's ownership interest ends (the trustee's ownership period), the dwelling was not used to produce income and it was also the main residence of one or more of the following persons:
·
 the spouse of the deceased immediately before death
·
 an individual who had a right to occupy the dwelling under the deceased's will, or
·
 an individual who brought about the CGT event and the ownership interest in the dwelling had passed to that individual as beneficiary.

In this case, the trustee's ownership interest in the dwelling ended more than two years after the date of the deceased's death. Therefore a full main residence exemption will only be available if the dwelling was the main residence of one of the specified individuals during the trustee's ownership period.

Under the terms of the deceased's will no individual was granted a right to occupy the deceased's dwelling. However, a right to occupy the dwelling was granted by a court order under the Family Provisions Act 1982 (NSW). Subsection 14(1) of the Family Provisions Act 1982 (NSW) provides that where an order is made by the Court for provision out of the estate of a deceased person, that order shall take effect where the deceased person has died leaving a will as if the provision had been made in a codicil to the will.

As a result, it is considered that the right to occupy the dwelling, granted by the court to the deceased's child, is a right to occupy the dwelling 'under the deceased's will' for the purposes of applying the main residence exemption in subsection 118-195(1) of the ITAA 1997. As the dwelling was this individual's main residence throughout the trustee's ownership period the trustee can disregard any capital gain made on the disposal of the dwelling.

Date of decision: 28 July 2004

Year of income:Year ended 30 June 2004

Legislative references:
Income Tax Assessment Act 1997
   section 118-195
   subsection 118-195(1)

Family Provisions Act 1982 (NSW)
   subsection 14(1)

Keywords
capital gains
capital losses
CGT deceased estates
CGT main residence exemption
dwellings
wills

Siebel/TDMS reference number: 4107405; 1-B0RD5IO

Business line: Small Business/Individual Taxpayers

Date of publication: 10 September 2004

ISSN: 1445-2782

ATO ID 2004/734 (Withdrawn) history   Top  
   Date   Version 
   28 July 2004   Original statement   
 You are here ®  21 July 2017   Withdrawn   


 


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