Flahertys Arden Bowl, Inc. - Page 6




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          Revenue Code, provide the statutory framework for the tax laws              
          governing employee benefit plans and generally are administered             
          by the Department of the Treasury.  See Rutland v. Commissioner,            
          89 T.C. 1137, 1143 n.4 (1987).                                              
               There are many areas where the labor provisions coincide               
          with or overlap the tax provisions.  While much of the statutory            
          terminology is similar, there are instances in which the statutes           
          are different.  At issue in this case is one of those                       
          inconsistencies.                                                            
               Section 4975(a) provides:                                              
                    SEC. 4975(a). Initial Taxes on Disqualified Person.--             
               There is hereby imposed a tax on each prohibited                       
               transaction.  The rate of tax shall be equal to 5 percent of           
               the amount involved with respect to the prohibited                     
               transaction for each year (or part thereof) in the taxable             
               period.  The tax imposed by this subsection shall be paid by           
               any disqualified person who participates in the prohibited             
               transaction (other than a fiduciary acting only as such).              
          The definition of a prohibited transaction includes “any direct             
          or indirect lending of money or other extension of credit between           
          a plan and a disqualified person”.  Sec. 4975(c)(1)(B).  For our            
          purposes, section 4975(c) is similar to ERISA section 406, 29               
          U.S.C. section 1106(a)(1)(B), except that the term “disqualified            
          person” is changed to “a party in interest”.  A disqualified                
          person and a party in interest are defined as, inter alia, a                
          “fiduciary”.  Sec. 4975(e)(2)(A); ERISA sec. 3(14)(A), 29 U.S.C.            
          sec. 1002(14)(A).  Section 4975(e)(2)(G) and ERISA section                  
          3(14)(G), 29 U.S.C. 1002(14)(G), further provide that a                     





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