Neil M. Baizer - Page 23

               Further, the DOL and the IRS have differing roles in the               
          area of prohibited transactions.  The DOL's primary function is             
          to protect the rights of workers, while the IRS' primary function           
          is to protect the revenue.  Winger's Dept. Store, Inc. v.                   
          Commissioner, 82 T.C. 869, 888 (1984); see H. Conf. Rept. 93-               
          1280, supra at 306, 1974-3 C.B. at 467.  Under the labor                    
          provisions, a fiduciary is personally liable to the plan for                
          losses attributable to a breach of fiduciary duty, as well as               
          restoring any profits made on the transaction.13  On the other              

               13  The legislative history of ERISA reflects the                      
          congressional understanding that the perspectives of the DOL and            
          IRS are different:                                                          
               The conference substitute establishes rules governing                  
               the conduct of plan fiduciaries under the labor laws                   
               (title I) and also establishes rules governing the                     
               conduct of disqualified persons (who are generally the                 
               same people as "parties in interest" under the labor                   
               provisions) with respect to the plan under the tax laws                
               (title II).  This division corresponds to the basic                    
               difference in focus of the two departments.  The labor                 
               law provisions apply rules and remedies similar to                     
               those under traditional trust law to govern the conduct                
               of fiduciaries.  The tax law provisions apply an excise                
               tax on disqualified persons who violate the new                        
               prohibited transaction rules; this is similar to the                   
               approach taken under the present rules against self-                   
               dealing that apply to private foundations.                             
                    The labor provisions deal with the structure of                   
               plan administration, provide general standards of                      
               conduct for fiduciaries, and make certain specific                     
               transactions "prohibited transactions" which plan                      
               fiduciaries are not to engage in.  The tax provisions                  
               include only the prohibited transaction rules and apply                
               only to disqualified person, not fiduciaries * * *.  To                
               the maximum extent possible, the prohibited transaction                
               rules are identical in the labor and tax provisions, so                
               they will apply in the same manner to the same                         

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