Hello Vince
Yes, whilst appreciating the comments you have made and the references to SMSFR 2010/1, the following paragraphs from SMSFR 2010/1 also need to be considered:
Characterising the transaction as the acquisition of an asset
110. When considering the application of subsection 66(1) to a
transaction between a trustee or investment manager and a related
party, issues may arise as to whether it is the acquisition of an asset
or, what is the relevant asset, particularly if services or rights under a
contract arise.111. In the Commissioner’s view, it is appropriate to characterise
the acquisition by considering the substance of the transaction rather
than taking an overly legalistic approach to the transaction.
I still take the view that in practice, despite the legal rights that might be assigned from the fund member to the fund when the nomination is completed, the true substance of what is occurring is that the arm’s length vendor is disposing of real estate to the trustee of the super fund.
If you are inclined to report a section 66 breach, it is important to appreciate that the “asset” that has been acquired from the fund member is not the residential property.   Instead, if there is an asset that falls within the scope of section 66(1) in this scenario, it is the obligation to complete the contract to purchase the residential property. This asset ceases to exist once the contract has been settled.
Just because the activation of an “or nominee” clause in a land sale contract might activate double stamp duty under a sub-sale in some States/Territories, depending on a range of facts, this should not be equated with an assumption that for the purposes of the Income Tax Assessment Act 1997 or the Superannuation Industry (Supervision) Act 1993 that a nominee clause triggers the disposal of an underlying real property asset from the vendor to the initial intended purchaser per the contract, and then a further disposal from the intended purchaser to the actual purchaser per the nomination process.
In relation to the reference you made to paragraph 22, this paragraph needs to be understood in the context of the preceding comments in paragraph 21 (refer below).  It is important to note that the trustee of the super fund has not entered into a contract to purchase the real estate from a related party. Nor has it entered into a right or option to acquire an asset from a related party.
By completing the nomination process (regarding the and/or nominee clause in the contract of sale), the trustee of the super fund does not have an option or right to settle, but the legal obligation to settle.
Acquisition of rights or some other asset
20. If a trustee or investment manager enters into a contract to
purchase an asset from a related party, the substance of the
transaction is generally the acquisition of that asset and not any rights
that may also arise under the contract. It is the asset that is acquired
even if the agreement is subject to conditions such as obtaining
finance, a building inspection report or a ‘cooling off’ period. The
acquisition of the asset contravenes subsection 66(1) unless an
exception (for example, the business real property exception) applies.21. If, however, a trustee or investment manager enters into an
agreement (it may be in the form of an option agreement) with a
related party that gives the trustee or investment manager the right to
acquire an asset (the underlying asset) at a fixed price at some future
point in time, but does not obligate the trustee or investment manager
to acquire the underlying asset, the substance of the transaction is
the acquisition of that right or option (an asset) from the related party
and not the acquisition of the underlying asset. If the underlying asset
is later acquired from the related party, this is the acquisition of an
additional asset by the trustee or investment manager.22. The acquisition of the right or option contravenes
subsection 66(1) unless an exception applies. The acquisition of the
underlying asset contravenes subsection 66(1) unless an exception
applies.
Best regards
The Auditors Institute