- 7 - Discussion The primary issue we must decide is whether petitioner engaged in a prohibited transaction so as to be subject to the first-tier excise tax under section 4975(a). Section 4975(a) imposes a 5-percent excise tax on any disqualified person who participates in a prohibited transaction. Respondent determined that petitioner is a disqualified person under section 4975(e)(2)(A), (E), and (H) who engaged in a prohibited transaction under section 4975(c)(1)(D) and (E). Respondent's determination is presumed correct, and the burden is on petitioner to disprove her determination. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933); Laird v. Commissioner, 85 F.2d 598, 599 (3d Cir. 1935), affg. 29 B.T.A. 196 (1933). Petitioner argues that he is not a disqualified person who engaged in a prohibited transaction or, alternatively, that he should be exempt from the excise tax. A. "Disqualified Person" The term "disqualified person" includes fiduciaries and people owning 50 percent or more of the corporation sponsoring the Plan. Sec. 4975(e)(2)(A), (E). "Fiduciaries" include persons who exercise discretionary authority over the management of a plan or its assets. Sec. 4975(e)(3). A plan administrator is a fiduciary where he or she has the day-to-day administrativePage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: May 25, 2011