Holding Property Through a Trust, Company or SMSF: The Risks Most Buyers Only Discover After Settlement
Buying property through a structure rather than in your own name sounds like smart planning. And it can be. But the tax, legal and compliance risks that come with trusts, companies and self-managed super funds are real, and they catch people off guard more often than most advisers would like to admit. Here is what actually goes wrong, and why getting the structure right from the start matters more than most buyers realise.
Structure Comparison at a Glance
Trusts: The Negative Gearing Problem Nobody Mentions
Discretionary trusts are popular for asset protection and income splitting, but they cannot distribute losses to beneficiaries. If the property runs at a loss, that loss stays trapped inside the trust. You get none of the negative gearing benefits that individual ownership provides.
Other common trust property traps:
Land tax surcharges: In most states, trusts do not receive the land tax threshold available to individuals, meaning higher annual land tax bills from day one.
Stamp duty on trust deeds: Resettling or amending a trust after purchasing property can trigger stamp duty as if the property changed hands.
Trustee liability: If the trustee is an individual rather than a company, personal assets can be exposed if something goes wrong.
Companies: The CGT Discount Trap
A company generally pays tax on taxable income at either 30%, or 25% if it qualifies as a base rate entity. Unlike individuals and eligible trusts, a company does not qualify for the 50% capital gains tax discount on assets held for more than 12 months. That means if a company sells a property after five years of growth, tax is calculated on the full capital gain, not half of it.
Working with a tax lawyer Perth Australia means understanding this before you buy, not when you're preparing the contract of sale.
SMSFs: Compliance Risks That Can Wipe Out the Fund
Buying property through a self-managed super fund is tightly regulated by the ATO. The property must meet the sole purpose test, meaning it exists solely to provide retirement benefits. The consequences of getting this wrong are severe.
Related party transactions: The fund generally cannot purchase residential property from a member or their relatives, even at market value.
Personal use: Members and their relatives cannot live in or use the property. This rule applies even occasionally.
Limited recourse borrowing: If the SMSF uses a limited recourse borrowing arrangement (LRBA) to buy property, the structure must be set up precisely, or the ATO may treat the fund as non-complying.
A non-complying SMSF is taxed at 45% on its entire assets, not just the income from the property. That is not a fine. That is a fund-ending event.
Why the Structure Decision Cannot Be Undone Cheaply
Transferring property from one structure to another after purchase typically triggers stamp duty and CGT all over again. There is no do-over. The best tax lawyer Perth property investors rely on will map out the full tax cost of each structure before you sign anything, including what happens on eventual sale.
The team at Munro Doig works across property, tax and superannuation law simultaneously, which is exactly what this kind of decision demands. Most buyers who end up in the wrong structure got there by following advice that only looked at one piece of the puzzle. If the structure, the tax treatment and the super rules are not reviewed together before you sign, the gaps between them become very expensive problems to fix later.













