-24-
hand, the tax provisions of section 4975 impose a two-tier excise
tax on the disqualified person who participated in the prohibited
transaction. See Rutland v. Commissioner, 89 T.C. at 1146.
Under the Reorganization Plan, the IRS retained its authority to
enforce the excise tax of section 4975, and the DOL retained its
authority to bring civil actions. Reorg. Plan secs. 104 and 105.
Considering the role established in Reorganization Plan
sections 102 and 105 and the legislative history, we hold that
the DOL does not have sole jurisdiction to determine whether a
prohibited transaction occurred. The Code and ERISA provide that
the IRS must notify the DOL before issuing the notice of
deficiency and afford the DOL an opportunity to comment on the
imposition of the tax, but they do not require that the notice of
deficiency be based on a the DOL determination that the
transaction was a prohibited transaction under section
4975(c)(1)(A). In order to enforce the excise taxes under
section 4975(a) and (b), respondent has the authority to
determine whether a transaction is a prohibited transaction under
section 4975(c)(1) and respondent duly exercised that authority
in this case. See Reorg. Plan sec. 102(a)(i) and (ii).
13(...continued)
transaction.
H. Conf. Rept. 93-1280, at 295-296 (1974), 1974-3 C.B. 415, 456-
457.
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