How to Spot and Avoid Illegal SMSF Schemes

Risks of entering into a scheme

An SMSF is a trust generally run for the sole purpose of providing retirement benefits to its members. Generally, it’s illegal for anyone to benefit from the SMSF outside this arrangement.

Individuals are being targeted to start an SMSF for a range of inappropriate and illegal reasons, such as:

to get a present day benefit for the individual or a different party
to steal superannuation from the individual
to convince someone to move their super from an APRA fund to an SMSF so that they can access their super before a condition of release is met
to convince someone to invest their super money into a fraudulent investment.

You may risk losing some or all of your retirement savings and receive serious penalties if you enter into a scheme. You could also be disqualified as a trustee of your SMSF which could result in your fund being wound up.

Don’t be tempted by ‘too good to be true’ schemes and risk your retirement savings. We encourage you to consult with us before you commit to any arrangements.

You should consider how arrangements you enter affect your SMSF and whether they contravene the tax and super laws. A key issue in many SMSF’s are transactions involving parties who are familiar to you and the consequences of not dealing on an arm’s length basis.

Where you purchase business interests – whether they be property, a share in a business or similar structure, you should always check that your acquisition is at arm’s length by getting an independent valuation at the time of the transfer.

Guide to identifying and avoiding schemes

Anyone can be a promoter of an unlawful tax scheme. Recognise these warning signs, especially in the following arrangements:

illegal early release schemes that encourage people to set up an SMSF and use their super benefits for personal purposes
tax avoidance schemes encourage people to channel money inappropriately into their SMSF to avoid paying tax.

Avoid making an investment that could result in illegal consequences, by:

seeking financial advice in relation to setting up an SMSF and about investments
recognising a potentially illegal scheme
getting independent valuations appropriate to the type of asset you’re investing in.

Promoters

Some promoters will look for new ways to exploit the law or changes in the law. They will promote schemes to people and promise benefits that aren’t legally available.

The ATO actively monitors promoter behaviour and acts against promoters through application of the promoter penalty laws.

How to recognise a scheme

Schemes have some common features, they:

are artificial or contrived arrangements with complex structures around an existing or new SMSF
involve seemingly unnecessary steps or transactions
invariably sound ‘too good to be true’ and they generally are.

If you’ve been approached by a promoter

Be aware of individuals who don’t hold a financial license and promote schemes in their own right or on behalf of a business that also doesn’t hold a financial license. You should check the ASIC financial advisers register to make sure the person or business you are dealing with has a financial license.

Make sure you are receiving ethical professional advice when undertaking retirement planning. You should seek a second opinion from a trusted, licensed and reputable expert, especially if you are in any doubt.

If you think you’ve been approached by a promoter or caught up in a scheme, contact us immediately so we can help you.

Be aware of these schemes

SMSF-related schemes of concern to be aware of:

Property

The following schemes relate to SMSFs and property.

Residential property purchased through illegal SMSF schemes

These schemes often target first home buyers wanting to enter the Australian property market to purchase a house and land package.

These schemes may be structured differently, but typically involve the:

set up or use of an SMSF
rollover of a member’s super benefits from an existing fund to the SMSF
SMSF investing in a property trust (an unrelated unit trust) for a fixed period and rate of return, being a contributory fund with other investors
on-lending of money by the property trust to individuals to help them purchase real property, secured by mortgages over the property.

Once the investment is in place, the member gains access to money from a third-party entity to help finance the purchase of residential property under an arrangement commonly referred to as a ‘loan’. Depending on the scheme, this money is used for:

all or part of the deposit
the balance of the purchase price
costs related to the purchase.

In some cases, the money is also used to help consolidate the member’s personal debts to help them secure a home loan.

In return for a high fee paid by the fund, the scheme promoter commonly helps by:

establishing the SMSF and the property investment
organising the purchase of the property, including the payment of the deposit and home loan.

These schemes are established and promoted to look like a genuine SMSF investment to help individuals purchase a home.

However, they often contravene one or more of the super laws, which may give us reason to view the SMSF as:

a ‘sham’ and not a legitimate super fund
providing a member with a current day benefit
set up and maintained in a way that doesn’t comply with the sole purpose test.

The arrangement may also involve the:

illegal early access of super benefits by members
giving of financial assistance to a member using the resources of the fund
provision of a ‘loan’ to a member to help them buy a home (if a genuine ‘loan’, will be an in-house asset of the fund).

To determine whether a scheme gives rise to a contravention of the super laws, we will take a ‘look-through’ approach and consider the arrangement as a whole.

If SMSF monies are used to help purchase a house for a member or a relative to live in through investments in other entities, this may be treated as illegal early access of super benefits. The amount may be included in the member’s assessable income and taxed at their marginal rate, with the potential for tax shortfall penalties to also apply.

The trustee will have contravened one or more of the super laws and serious penalties may apply. The trustee may be:

personally liable to pay an administrative penalty
disqualified from acting as trustee.

If trustees are involved in a scheme like this, they should make a voluntary disclosure, see SMSF early engagement and voluntary disclosure service. The ATO will take this into account when determining any penalties that may apply.

If you’re approached by promoters or think you’re involved in a scheme you can report it to us confidentially, as well as the ATO.

Related-party property development ventures

Property development in associated joint venture structures may result in substantial profits for the SMSF, especially if related group entities provide most of the services without adhering to arm’s length market values. This results in profits disproportionately attributed to the SMSF compared to the capital contributed.

Whilst an SMSF can invest directly or indirectly in property development ventures, extreme care must be taken.

Some arrangements can result in significant income tax and superannuation regulatory risks, potentially including the application of the NALI provisions and breaches of regulatory rules about related party transactions.

Residential property purchased in a member’s name

This is where an SMSF is set up to help members buy residential property in their personal name. These schemes often target first home buyers wanting to enter the property market.

Legal life interest of property

This happens when an SMSF member or other related entity grants a legal life interest over commercial property to a SMSF. This means the rental income diverted to the SMSF is taxed at a lower rate without full ownership of the property ever transferring to the SMSF.

Illegal early access

Illegal early access schemes encourage you to withdraw your super before you’re legally entitled to.

Beware of people promoting early access schemes. They might tell you they can help you set up a SMSF to withdraw your super and use it to pay for personal expenses.

Non-concessional cap manipulation

This occurs when SMSF members deliberately exceed their non-concessional contributions cap to manipulate the taxable and non-taxable components of their superannuation account balances.

Dividend stripping

When shareholders in a private company transfer ownership of their shares to a related SMSF, the company can pay franked dividends to the SMSF and strip profits from the company in a tax-free or concessionally taxed form.

Limited recourse borrowing arrangements (LRBA)

The following schemes relate to LRBAs.

LRBA and arm’s length dealings

SMSF trustees undertaking LRBA and related party lending arrangements that are not consistent with a genuine arm’s length dealing.

LRBA and intra-group lending arrangements

Any lending arrangements which involve an SMSF, whether directly via an LRBA or indirectly through an associated entity that can benefit an SMSF, must be on terms equivalent to those commercially available to people in similar lending circumstances.

Any variation of these terms may include but are not limited to:

the risks being taken by the lender
interest rates
terms of repayment.

Increasing SMSF balances and profits to the SMSF through below-market value interest payments are of particular interest to the ATO when conducting reviews into non-arm’s length income matters.

Personal services income

This occurs when an individual (with an SMSF often in pension phase) diverts income earned from personal services to the SMSF to be concessionally taxed or treated as exempt from tax.

Mezzanine lending

Lending by the SMSF with complex intra-group lending arrangements that provides both finance and asset protection. While the intra-group entities bear the risk, the SMSF receives all of the profit from the arrangement.

Asset protection schemes

Arrangements that claim to protect SMSF assets from creditors by mortgaging them to an asset protection trust (known as a ‘Vestey Trust’) present a compliance risk.

A Vestey Trust is a discretionary trust established by deed. It is claimed that the trust is set up to acquire the equity in the SMSF’s assets through an equitable mortgage.

The mortgage is supported by a promissory note executed by the SMSF to the Vestey Trust. This recognises a debt is owed by the SMSF to the Vestey Trust. The mortgage is also supported by a caveat by the Vestey Trust over the SMSF’s real property. The arrangement can also allow a transfer of the SMSF’s cash holdings to a bank account in the name of the Vestey Trust.

Some asset protection schemes are a concern because:

First, the arrangement is unnecessary because the super system already protects SMSF assets from creditors.
Second, the arrangement is a compliance risk and may contravene one or more super laws. For example, it may
- result in the giving of a ‘charge’ over, or in relation to, a fund asset by the SMSF trustee
- involve the ‘borrowing’ of money by the SMSF trustee
- expose fund assets to unnecessary risk if it’s not clear who owns them
- cause the fund to be maintained in a way that doesn’t comply with the sole purpose test.
Finally, SMSF money can’t be used for costs related to asset protection arrangements entered into by members to protect their personal or business assets because these expenses are not incurred in running the SMSF.

If the arrangement contravenes the super laws, penalties may apply.

If trustees are involved in a scheme like this, they should make a voluntary disclosure. The ATO will take this into account when determining any compliance action.

Asset valuations

Where asset valuations are not fit for purpose and are being applied to the intra-group transfer of assets. The assets are being transferred to the SMSF at lower values than they’re worth.

Multiple SMSFs

Improper use of multiple SMSFs can become a compliance issue when additional funds are established to manipulate tax outcomes. For example:

switching the respective funds between accumulation and retirement phase
rolling over potentially tainted NALI funds into a new SMSF to avoid possible reviews and amendments by us.

Inappropriate use of reserves

Many existing reserves in SMSFs arose legitimately from legacy pensions that are no longer available. Consequently, there are limited appropriate circumstances where new reserves could be established and maintained in SMSFs. Structures using reserves designed to bypass super balance and transfer balance cap measures will attract our scrutiny.

For more information or, if you are unsure about anything outlined above, give our SMSF Specialists a call at Intuitive Super on 1300 856 064.

Source: ato.gov.au September 2025
Reproduced with the permission of the Australian Tax Office. This article was originally published on https://www.ato.gov.au/about-ato/tax-avoidance/understanding-tax-schemes/schemes-targeting-smsfs. Important: This provides general information and hasn’t taken your circumstances into account. It’s important to consider your particular circumstances before deciding what’s right for you. Although the information is from sources considered reliable, we do not guarantee that it is accurate or complete. You should not rely upon it and should seek qualified advice before making any investment decision. Except where liability under any statute cannot be excluded, we do not accept any liability (whether under contract, tort or otherwise) for any resulting loss or damage of the reader or any other person.
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