He rolled over $120,000 and lent nearly all of it to his own overseas company within days. The disqualification stood.
Your client sets up an SMSF. Rolls over $120,000 from an industry fund. Within days, he begins lending nearly all of it to his overseas company to finish a villa.
No returns lodged. No audit completed. No understanding of trustee obligations. The Commissioner disqualifies him. The Tribunal agrees, but not on every ground. Maietta and Commissioner of Taxation [2026] ARTA 534.
What happened
Maietta established an SMSF in November 2021. By April 2022, he had rolled over $120,134 from Australian Super and began lending nearly all of it to Maietta Property Group SL - his wholly-owned Spanish company building a villa since 2008 [34, 38-39].
The Investment Agreement provided for unsecured loans at 10% interest, repayable on sale [42-43]. No returns were lodged for any year from 2021-22 to 2024-25 [101]. iCare Super offered to prepare returns for $1,672. Maietta declined [57, 135].
The Commissioner disqualified him under s 126A(2) SISA for breaches of the sole purpose test, lodgement obligations, and financial assistance provisions.
The Tribunal’s findings
Section 62 was contravened. The fund was not maintained solely for core purposes. Maietta’s purpose from inception was to fund MPG and accelerate his construction project [93-94]. Following Aussiegolfa [2018] FCAFC 122, a related-party transaction is not of itself a breach. But here the fund existed to serve that single project.
Section 35D was contravened for every year [101]. Returns remained outstanding at the hearing.
The s 65(1)(b) financial assistance allegation failed [123-124]. The Tribunal distinguished Merchant [2024] AATA 1102. No evidence funds lent to MPG provided direct or indirect benefit to Maietta or relatives. The Agreement restricted use to construction costs. Shareholding alone was not financial assistance.
Despite no dishonesty [130], disqualification was affirmed [160-161]. Contraventions were serious and unrectified. Maietta showed no understanding of his obligations [131, 158]. He took no steps to lodge returns even under a Stay Order [157]. Forward-looking compliance risk was decisive.
The practical takeaway
The s 65 finding matters. Lending to a member’s own company under a formal investment agreement is not automatically financial assistance. The Tribunal required evidence of actual benefit flowing back, not just the corporate relationship.
But that win changed nothing. The sole purpose breach and persistent non-lodgement were independently fatal. Non-lodgement prevented early detection of the s 62 issue [150] and demonstrated ongoing disregard for obligations.
If your client has an SMSF with related-party investments, fund structure and documentation may matter. But nothing saves a trustee who does not lodge returns and cannot articulate their obligations.
General information only. This note was accurate when written. The law may have changed since and the note is not updated. It is not legal or tax advice, does not take account of your circumstances and must not be relied upon as a substitute for advice on your own matter. If the issue is live for you or your client, email arda@nortonquaytaxlaw.com.au for advice on the current position.