Gaylord W. Greenlee - Page 9

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          4975(c)(1)(D) issue, and we limit our discussion to section                 
          4975(c)(1)(E).                                                              
               Under section 4975(c)(1)(E), a disqualified person engages             
          in a prohibited transaction when, as a fiduciary, he or she                 
          "deals with the income or assets of a plan in his [or her] own              
          interest or for his [or her] own account".  The regulations                 
          provide that "A fiduciary does not engage in an act described in            
          section 4975(c)(1)(E) if the fiduciary does not use any of the              
          authority, control or responsibility which makes such person a              
          fiduciary to cause a plan to [perform the act in question]".                
          Sec. 54.4975-6(a)(5)(ii), Qualified Pension Plan Excise Tax Regs.           
          A fiduciary does not "[deal] with * * * assets of a plan in his             
          [or her] own interest" when he or she absents himself or herself            
          from all consideration of the investment proposal and the                   
          trustees make an independent investment decision.  See sec.                 
          54.4975-6(a)(6), Example (7), Qualified Pension Plan Excise Tax             
          Regs.                                                                       
               The policy behind the enactment of section 4975 was to tax             
          fiduciaries who engage in self-dealing rather than "innocent                
          employees."  S. Rept. 93-383, at 95 (1974), 1974-3 C.B. (Supp.)             
          80, 174.  Before the enactment of section 4975, prohibited                  
          transactions would lead to the disqualification of a pension                
          plan.  Id. at 94, 1974-3 C.B. (Supp.) at 173.  This                         







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