Property Inheritance and Taxes

The passing away of someone you love is a tragic event but not taking into account the tax considerations on sale of any property you receive from an inheritance as part of that estate can cause further grief.

Main Residence

If the property was used as the main residence of the deceased then any capital gain or loss on a dwelling acquired by an individual as a beneficiary of deceased estate or by the trustee of a deceased estate will be fully exempt if

  1. the dwelling was the deceased’s main residence just before they died or it was the deceased’s pre-CGT property; and
  2. the dwelling was disposed of within two years of the deceased’s death, or it was, from the time of death until the disposal, the main residence of
  • the spouse of the deceased
  • an individual who had the right to occupy the dwelling under the will of the deceased ; or
  • a beneficiary

3. then need to consider a number of events with your adviser.

Careful planning needs to be undertaken to ensure that this event is planned for.

For all other property, other than your main residence or other dwelling e.g. an investment property, you will need to determine whether the property is a pre-CGT asset (purchased prior to 20 Sept 1985) or a post-CGT asset (purchased after 20 Sept 1985).

Pre CGT Assets of the Deceased

If the property you inherit was acquired by the deceased prior to 20 September 1985 you will be deemed to have acquired the property for its market value on the day the deceased died.  It will then be a post CGT asset for you.  You will need to hold the property for more than 12 months from the date the deceased died in order to obtain the 50% general CGT discount.

Remember though the special rules in Section 118-195 ITAA 1997.  If the property was acquired by the deceased prior to Sept 1985 and you dispose of that property within 2 years of the deceased date of death there will be no CGT on the sale of that property.  Many accountants do not read the table in Section 118-195 properly and think it is to be read like most tables.  However s118-195 makes it very clear only one condition in Column 3 and one condition in Column 2 is required.  It is a matrix not a table.  We have seen this to be a common mistake made by many accountants.

Post CGT Assets of the Deceased

If the property you inherit, other than your main residence (discussed above) or other dwelling e.g. an investment property which are subject to special rules (worth discussing with your adviser), was acquired by the deceased on or after 20 September 1985 you will be deemed to have acquired the property for the cost base and the reduced cost base that applied to the deceased.  You will need to hold the property for more than 12 months from the date the deceased acquired the property to obtain the 50% general CGT discount.

They say that two things in life are certain.  Death and taxes.  Unfortunately the two are often intertwined.  House of Wealth are able to assist with the preparation of a deceased clients tax return.