By The Chipkie Team, Personal Finance Editorial Team · Last updated 1 August 2026
Your uncle offers you $150,000 to get the company off the ground. There’s no term sheet, no lawyer, and no conversation about what he actually gets in return — just a bank transfer and a hug. Eighteen months later, when a real investor asks to see your cap table, that hug becomes a problem worth considerably more than $150,000. Family capital is the fastest money an Australian founder will ever raise, and the most expensive money a founder can mishandle.
Here’s what makes the Australian version of this problem different. There is no gift tax in Australia and no inheritance tax, so the transfer itself is rarely the issue — which is exactly why founders here get comfortable and skip the paperwork. The risk sits somewhere else entirely: in the Corporations Act rules about who you’re allowed to offer shares to, in the Australian Taxation Office rules that decide whether your family gets a 20% tax offset or nothing at all, and in the superannuation rules that make one very common plan flatly illegal.
Key Takeaways
- Australia has no gift tax and no death duties, so an undocumented family loan usually creates no immediate tax bill — the damage shows up later, in diligence, in a relationship breakdown, or in a lost tax concession.
- Section 708 of the Corporations Act lets you issue securities to up to 20 people raising up to $2 million in any rolling 12 months without a disclosure document — and section 708(12) carves out a senior manager’s spouse, parent, child, brother or sister entirely.
- The ESIC concessions give investors a 20% non-refundable tax offset and a CGT exemption on shares held 12 months to 10 years — but only on newly issued ordinary shares, which means a convertible note earns nothing until it converts.
- Your parents cannot lend you their superannuation. Section 65 of the SIS Act prohibits a fund from lending to a member or a relative of a member, with administrative penalties running to roughly $18,780 per trustee.
- If family lends through their own private company, Division 7A applies and the benchmark interest rate for 2026-27 is 8.77%.
Why do handshake deals with family turn into equity problems?
Handshake deals become equity problems because undocumented money has no defined character, and the person who defines it later is rarely you. A transfer with no paperwork can be argued after the fact as a gift, a loan, or an investment — and the version that gets adopted usually depends on who has the better lawyer at the worst possible moment.
The friction shows up in three places, and never on day one:
- Emotional drift. Your father lends you $80,000 when the company is worth nothing. Three years later you raise at a $12 million valuation. He never asked for equity, but he starts doing the maths on what his money “should” have become. Nobody is wrong here — the terms were simply never agreed.
- Legal expiry. In most Australian states and territories, a simple contract debt becomes statute-barred after six years (three in the Northern Territory). For a loan repayable on demand, that clock can start running from the date the money moves — not from the day you finally ask for it back. We covered this in our guide to the hidden statute of limitations on family loan agreements.
- Diligence failure. When a VC runs diligence, an unpapered $150,000 from a relative reads as a contingent liability of unknown size. Some funds will make you clean it up before completion. Some will just pass.
The fix is one decision, made in writing, before the money moves: is this debt or is this an investment? Debt is a fixed obligation with a repayment schedule and no ownership. An investment buys a piece of the company and, by default, a say in it. Families come unstuck when they fund a company on the emotional terms of debt and the financial expectations of equity.
Should family money be a loan or shares in Australia?
For preserving control, a term loan wins — it is the only structure that gives you capital with zero dilution and zero governance rights attached. But in Australia the calculation has a wrinkle the US doesn’t have: if your company qualifies as an Early Stage Innovation Company, taking the money as equity may be worth far more to your family than any interest you could pay them.
| Structure | Dilution | ESIC concessions available | Best when |
|---|---|---|---|
| Term loan (promissory note) | None | No | You have revenue or runway to make repayments |
| Convertible note | On conversion | Only on conversion, and only if the company still qualifies then | You need a bridge and can’t service repayments |
| Newly issued ordinary shares | Immediate | Yes, if all tests are met | The company is ESIC-eligible and family is investing, not lending |
Three drafting points do most of the work:
- Decide on voting rights explicitly. Family shares can be issued as a separate class, or issued as ordinary shares alongside a shareholders’ agreement containing drag-along rights, pre-emptive rights and a proxy in favour of the founder. Note the tension: ESIC concessions require ordinary shares, so an over-engineered share class can cost your family the offset. This is the clause your lawyer earns their fee on.
- Match repayments to your actual cash cycle. A monthly amortising schedule starting 30 days after funding is how founders end up defaulting to their own mother. Interest-only for 18 to 24 months with a balloon or refinance trigger at your next round is more honest about how startups generate cash.
- Cap the downside, not the upside. Define default narrowly, with a 60 to 90 day cure period, and don’t give a relative the right to accelerate the full balance or take security over company IP.
What does the Corporations Act actually let you do?
You can raise from family without a prospectus, but only inside defined limits — and most founders never check them. Getting this wrong isn’t a technicality: an offer that needed a disclosure document and didn’t have one is a breach of the Corporations Act.
The three pathways that matter for a family round:
- Small-scale offerings (the “20/12 rule”). Section 708(1) permits personal offers resulting in issues to no more than 20 people, raising no more than $2 million, in any rolling 12-month period. Offers must be genuinely personal — no advertising, no social media announcement of the raise.
- Sophisticated investors. Section 708(8) exempts offers where the investor subscribes at least $500,000, or where a qualified accountant certifies net assets of at least $2.5 million or gross income of at least $250,000 in each of the last two financial years. These issues don’t count toward your 20/12 cap.
- The family exemption almost nobody uses. Section 708(12) provides that an offer made to a senior manager of the company — or to that person’s spouse, parent, child, brother or sister — does not need disclosure at all. If you’re a director and the money is coming from your mother or your brother, this provision exists specifically for you. Note how narrow the list is: it does not extend to uncles, cousins, in-laws or friends, who need to fit one of the other exemptions.
Keep a written log of every issue, which exemption you relied on, and the date. Reconstructing this two years later under diligence pressure is miserable.
How do the ESIC concessions change the maths?
The ESIC rules can make equity dramatically more attractive to your family than a loan — but they are unforgiving about form. Investors in a qualifying Early Stage Innovation Company receive a 20% non-refundable, carry-forward tax offset, plus modified CGT treatment under which gains on shares held at least 12 months and less than 10 years are disregarded entirely.
The details that decide whether your family gets this or not:
- Newly issued ordinary shares only. Buying existing shares doesn’t qualify. Neither does a convertible note — the offset attaches when shares are issued, and the company must satisfy the ESIC tests at that moment. A note that sits unconverted for two years while the company grows can convert into shares at a point where the company no longer qualifies, and the concession is simply gone. This is the single most expensive timing mistake in Australian family rounds.
- The 30% cap. An investor and their affiliates must not hold more than 30% of the company immediately after the issue. A parent going in heavily can breach this and lose the lot.
- Offset caps. Sophisticated investors face a $200,000 annual offset cap (affiliate-inclusive). Retail investors may invest up to $50,000 per income year to access the incentives, with the offset capped at $10,000.
- Company-side tests. Broadly, incorporated recently, prior-year expenses under $1 million, prior-year income under $200,000, not listed — plus either the 100-point innovation test or the principles-based test. Many companies seek an ATO private binding ruling for certainty.
- Reporting. ESICs that issued new shares during the financial year have an annual ATO reporting obligation. Diarise it; it is easy to miss in a founder’s first year.
Can your parents lend you their superannuation?
No — and this is the most common illegal plan in Australian family startup funding. Section 65 of the Superannuation Industry (Supervision) Act 1993 prohibits a fund trustee from lending money or providing financial assistance, using fund resources, to a member or a relative of a member. There is no threshold and no exception. Breaches attract administrative penalties in the order of $18,780 per trustee, and a fund made non-complying can have its income taxed at 45%.
Two nuances worth understanding:
- Lending to your company is a different rule, not a free pass. A loan from an SMSF to a related company isn’t automatically caught by section 65, but it becomes an in-house asset under section 71 and is capped at 5% of fund assets. The ATO also treats indirect financial assistance through an interposed entity as a section 65 breach where the substance is a benefit flowing to a member or relative.
- A back-to-back structure will not survive. Courts have held purported loan arrangements designed to work around section 65 to be unenforceable.
If your parents want to help from their own name, that’s fine. If the money is inside super, the answer is almost always no.
There is one more Australian-specific check. If your parents receive the Age Pension, Centrelink gifting rules allow $10,000 per financial year and $30,000 over five rolling years. Anything above that is treated as a deprived asset and counted in the means test for five years — which can quietly reduce their pension while they’re trying to help you. A properly documented loan is not a gift, which is another reason the paperwork matters. Our guide to setting financial boundaries with family covers the wider conversation.
Frequently Asked Questions
Do I have to charge my parents interest on a loan to my startup?
Not necessarily. Australia has no equivalent of the US applicable federal rate for genuine private loans between individuals, so a zero-interest family loan doesn’t create imputed income. The exception is where the lender is a private company or a trust with an unpaid entitlement — then Division 7A applies and the 2026-27 benchmark rate of 8.77% becomes the minimum for a complying loan agreement.
Does a friends and family raise need to be reported to ASIC?
If you rely on a section 708 exemption and stay within its limits, you don’t lodge a disclosure document. You still need to keep records proving the exemption applied, and you must update your company’s member register and lodge share issue notifications with ASIC in the usual way. A straight loan with no conversion feature is not a securities offering at all.
Will my brother’s investment qualify for the ESIC tax offset?
Possibly — relationship to you is not itself a disqualifier. What matters is whether the company passes the early stage and innovation tests, whether he subscribes for newly issued ordinary shares, and whether he and his affiliates stay under 30% ownership after the issue. Employees are treated differently, so if he also works in the business, get advice first.
What happens to my family’s money if the startup fails?
With a documented loan, an unrecoverable debt may support a capital loss, and the paperwork is what proves the debt was genuine. With shares in an ESIC, capital losses on shares held less than 10 years must be disregarded — the concession that exempts the gains also removes the loss. Family should understand this before they invest, not after.
Should we just call it a gift?
Only if it genuinely is one and both sides are at peace with never seeing it again. Australia imposes no gift tax, which makes this simpler here than in most countries — but a gift removes your family’s claim entirely, and it can affect Age Pension entitlements. If either of you expects the money back, document it as a loan. Our guide to building a proper family loan agreement sets out the essentials.
What’s the bottom line on family capital and founder control?
Founders rarely lose control of their companies to relatives in a single dramatic moment. They lose it by taking a transfer with no paperwork, then papering over it a year later under time pressure, on terms written by whoever cared most that day. Every structural advantage you have — zero dilution, no board seat, a repayment schedule that fits your cash flow, a 20% offset in your family’s pocket — exists only if it’s written down before the money moves.
Start with the simplest instrument that solves the problem. If you can service repayments, use a term loan and keep your cap table clean. If your company is genuinely ESIC-eligible and your family would benefit more from the offset than from interest, issue ordinary shares properly and get the timing right. Then run the numbers with our family loan calculator, and set up a written loan agreement in minutes with Chipkie so the terms live somewhere other than a memory of a conversation.
Disclaimer: The information provided in this article is for informational purposes only and should not be considered financial or legal advice. Rules vary by state and by individual circumstances. We always recommend consulting a qualified accountant and lawyer before entering into a financial arrangement with another party.
