Edited version of your private ruling

Authorisation Number: 1011989698403

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Ruling

Subject: Deceased estate

Questions and answers

Are you entitled to a deduction for legal expenses incurred in your role as executor of a deceased estate?

No

Are you entitled to a deduction for the upkeep of the estate's property in your role as executor of a deceased estate?

No

Are you entitled to a deduction for the upkeep of companion animals in your role as executor of a deceased estate?

No

Are you entitled to include legal expenses into the cost base of a capital gain which you incurred in your role as executor of a deceased estate?

Yes

Are you entitled to include expenses associated with the upkeep of companion animals into the cost base of a capital gain which you incurred in your role as executor of a deceased estate?

Yes

This ruling applies for the following period:

Year ended 30 June 2010

The scheme commences on:

1 July 2009

Relevant facts and circumstances

You were the executor and beneficiary of a deceased estate.

The estate sold a dwelling.

You received a distribution from the deceased estate in the form of a capital gain.

The will of the deceased empowered you to postpone sale of the real estate for so long as you thought fit.

You have indicated you postponed the sale of the dwelling because the deceased wanted the sale of the property postponed until certain companion animals lived out their life on the property and that your costs incurred in maintaining the property and cattle be reimbursed to you.

A statement of claim was made in the Supreme Court. The claim was made by one of the beneficiaries of the estate against you in your role as executor.

Under the claim, the Supreme Court issued orders that you as executor convert and distribute the estate. The court order ruled in favour of the other beneficiaries.

You were denied reimbursement of costs in relation to maintaining the property from the estate.

You were not entitled to reimbursement for legal fees from the estate.

Your expenses included:

· Council and Rural Land Protection Rates

· Insurance

· Electricity

· Repairs & Maintenance

· Fodder

· Veterinarian Fees

· You incurred legal expenses defending your position in the Supreme Court.

Relevant legislative provisions

Income Tax Assessment Act 1997

Division 8

Section 110-25

Section 110-35

Section 110-55

Section 128-15

Reasons for decision

Deductions

There are two types of deductions which are general deductions and specific deductions.

A general deduction is any loss or outgoing to the extent that it is incurred in gaining or producing assessable income. A specific deduction is an amount which is deductible under any provision specified by the Tax Assessment Acts.

The expenses of fodder and veterinarian fees were not expenses that were attributable to either an asset or trading stock. These were expenses that were incurred for the upkeep of companion animals. Expenses associated with the upkeep of companion animals do not meet the definition of an outgoing which you can deduct under the general deduction provisions or a specific deduction listed in Division 8 of the ITAA 1997. These expenses are considered private in nature and can not be deducted [section 8-1(2)(b) of the Income Tax Assessment Act 1997 (ITAA 1997)].

Expenses incurred in the upkeep of a property from which no income is being sourced, are not incurred in gaining or producing assessable income.

The legal fees that you incurred was in your role as the executor of the estate and not as the beneficiary of the estate. These legal expenses incurred were not for the purpose of producing assessable income of the estate, nor did they determine the beneficiaries level of entitlement to distributions of the corpus of the estate. You are therefore not entitled to a deduction under section 8-1 of the ITAA 1997 for legal expenses incurred in defending an action against the estate.

CGT events

CGT event C1 happens if a CGT asset you own is lost or destroyed (subsection 104-20(1) of the ITAA 1997).

The right to administer an estate is an intangible CGT asset. Paragraph 7 of Taxation Determination TD 1999/79 states that

CGT event C1 does not distinguish between tangible and intangible assets. Section 104-20 refers to 'CGT asset' and this includes intangible CGT assets.

Paragraph 2 of Taxation Determination TD 1999/79 states that:

The word 'lost' in its context in subsection 104-20(1) does not contemplate voluntary actions. Accordingly, at the direction of the courts, you lost your right to administer the estate and be reimbursed for expenses. You incurred expenses in relation to the management of the estate which are included in the cost base of CGT event C1.

Cost base

The cost base and reduced cost base of an asset each consist of five elements (sections 110-25 and 110-55 of the ITAA 1997). The elements of the reduced cost base of a CGT asset are the same as those for cost base except for the third element (subsection 110-55(2) of the ITAA 1997).

First element

The first element of cost base and reduced cost base is the total of the money paid, or required to be paid, and the market value of property given, or required to be given, in respect of the acquisition of the asset (subsection 110-25(2) of the ITAA 1997).

In the context of subsection 110-25(2) of the ITAA 1997, regard must be had to the presence of other elements of cost base. In particular, the specific inclusion of incidental costs of acquisition in the second element of cost base indicates that 'incidentals' would not ordinarily be included in the first element of cost base.

Accordingly, your legal expenditure was incurred as executor to preserve the rights over the assets of the estate by postponing probate. As you were not entitled to reimbursement from the estate for your legal expenses, you as executor, would then include the legal expenses in the first element of your cost base.

The expenses of fodder and veterinarian fees were expenses that were attributable to the upkeep of the estate. Your expenses associated with the upkeep of the companion animals are included in the first element of your cost base as you also lost the right to reimbursement for these expenses.

Second element

The second element of cost base and reduced cost base is the incidental costs that the taxpayer incurs in acquiring the CGT asset or which relate to a CGT event that happens in relation to the CGT asset (subsection 110-25(3) of the ITAA 1997).

Section 110-35 of the ITAA 1997 sets out the types of incidental costs.

Second element costs are typically costs which facilitate the acquisition of a CGT asset. One of these types of incidental costs is stamp duty or other similar duty.

Third element

The third element of cost base is the non-capital costs of ownership (subsection 110-25(4) of the ITAA 1997). These costs include:

· Interest on money borrowed to acquire an asset; and

· Costs of maintaining, repairing or insuring it; and

· Rates or land tax, if the asset is land; and

· Interest on money you borrowed to refinance the money you borrowed to acquire the asset; and

Amongst your expenses incurred, you paid rates to your local council and rates to the Rural Lands Protection Board, you also incurred repair expenses and paid for insurance premiums. Where the expense of electricity is attributable to the cost of maintaining and repairing the property, it can be included in the third element. The beneficiary is taken to have incurred these expenses on the day the legal personal representative incurred it, consequently, these expenses are not included in the executor's cost base.

Fourth element

The fourth element of cost base and reduced cost base is capital expenditure incurred to increase the asset's value and which is reflected in the state or nature of the asset at the time of the CGT event (subsection 110-25(5) of the ITAA 1997).

You have not specifically attributed an expense or category of expense which attributed to an increase in the asset's value. None of your expenses fall under the fourth element.

Fifth element

The fifth element of cost base or reduced cost base is capital expenditure incurred to establish, preserve or defend the title to the asset, or a right over the asset (subsection 110-25(6) of the ITAA 1997).

Your entitlement to your share of the estate was not in dispute. The legal fees that you incurred was in your role as the executor of the estate and not as the beneficiary of the estate. You therefore did not incur an expense under the fifth element.

Conclusion

As the executor of the estate, the legal expenses that you incurred in the course are included in your cost base.

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