SMSFs are generally prohibited from investing in related party investments. However, there are specific exceptions.
This article focuses on the exceptions that apply to related unit trusts and pre-1999 (pre-99) trusts, along with the consequences of breaching the in-house asset (IHA) rules.
Related unit trusts fall under the IHA definition. While an SMSF can invest in these trusts, it must comply with the 5% cap on total IHAs at the end of each financial year.
This can be difficult to manage, as related unit trust investments often exceed that limit.
SMSF investments are excluded from IHA rules if they fall into one of the following categories:
To qualify for IHA exemption, a related unit trust must meet the requirements in Division 13.22C and 13.22D of the SIS Regulations and must meet them at all times during the year.
The trust must not:
When compliant, related unit trusts give SMSFs flexibility to invest in assets, such as commercial property, that may otherwise be out of reach. Multiple unit holders can participate while the SMSF holds only a portion, helping manage risk and capital exposure.
Pre-99 unit trusts were once considered “gold” as they enabled borrowing before LRBAs were introduced. While SMSFs can now borrow under limited recourse borrowing arrangements (LRBAs), pre-99 trusts may still offer strategic value.
However, from 1 July 2009, these trusts:
If they do, the new investment becomes an IHA and counts towards the 5% cap.
A common compliance issue arises when a pre-99 trust has a loan but limited cash. After making loan repayments, the trust may lack funds to pay distributions, creating a beneficiary loan account.
Over time, this can breach IHA limits and trigger violations of the arm’s length rules and the sole purpose test.
If an SMSF exceeds the 5% IHA threshold, the trustees must:
If a trust breaches 13.22D, e.g. through unpaid distributions considered loans, it becomes permanently tainted and loses its IHA exemption.
At that point, the SMSF generally has three options:
SMSFs are generally prohibited from investing in related party investments. However, there are specific exceptions that apply to related unit trusts and pre-99 SMSF unit trusts.
In this article, we focus on those exceptions and the serious compliance risks of breaching the in-house asset rules.
Related unit trusts fall under the in-house asset (IHA) rules for SMSFs. This means an SMSF can invest in a related trust, but only if the total value of in-house assets does not exceed 5% of the fund’s total assets at 30 June each financial year.
This cap can be difficult to manage in practice, as investments in related unit trusts often exceed the threshold. Particularly where multiple related parties or properties are involved.
The ATO defines in-house assets to include:
There are three key exceptions to the in-house asset (IHA) rules for SMSFs. An investment will not be treated as an in-house asset if it falls into one of the following categories:
To remain exempt from the IHA rules, a related unit trust must satisfy the conditions set out in SIS Regulations 13.22C and 13.22D.
These rules must be satisfied at all times throughout the financial year, not just at year-end.
To qualify for exemption, the trust must not:
Unit trusts established before 11 August 1999 were once considered ‘gold’ for SMSFs. Prior to 2009, SMSFs were not permitted to borrow to acquire assets. These older trusts provided a unique way to access gearing when borrowing was otherwise prohibited.
Today, SMSFs can use limited recourse borrowing arrangements (LRBAs), but pre-99 trusts may still offer strategic benefits — especially for long-standing funds. However, there are important restrictions that must be respected.
Since the 2009 changes, these trusts are no longer allowed to:
If an SMSF reinvests earnings or contributes further capital into the trust, those amounts will be treated as in-house assets. This may result in a compliance breach if the fund exceeds the 5% IHA threshold.
One common issue with pre-99 SMSF unit trusts arises when the trust has ongoing loan repayments but insufficient cash reserves. This scenario can create a compounding compliance risk.
For example:
Over time, this loan account can grow significantly, potentially triggering a breach of the IHA rules, as well as the arm’s length rules and sole purpose test.
If an SMSF exceeds the 5% in-house asset threshold, the trustees must take corrective action.
This includes:
If a related unit trust breaches the conditions in SIS Regulation 13.22D — such as by allowing unpaid entitlements that qualify as a loan — it becomes permanently tainted.
Once tainted, the trust is no longer exempt from IHA rules. The SMSF is then left with limited options:
Use this checklist to help assess the ongoing compliance of related unit trusts:
Related unit trusts and pre-99 SMSF trusts offer flexibility and strategic opportunities for SMSFs, but they come with strict rules and serious compliance risks.
Breaches can occur easily and may lead to costly and irreversible consequences. Regular review and structure management are essential for maintaining compliance.
This resource supports accountants and advisers in making fast, informed decisions with confidence.
Read our guide to determine when an actuarial certificate is required for your SMSF clients.
Contact us for technical support with reviewing related unit trusts or structuring compliant SMSF investments.
Alex clarifies when to use an Actuarial Certificate and when you aren’t expected to.
Keep up to date with all the latest SMSF news and updates by subscribing to SMSF Engine’s newsletter.