Neil M. Baizer - Page 26

          petitioner).  However, the Consent Judgment contains no mention             
          of the assignment of the accounts receivable.  Further, there is            
          no evidence in the record regarding the degree of scrutiny of the           
          DOL's investigation into the assignment.  The parties to the                
          Consent Judgment agreed that the entry of the judgment was a                
          final adjudication of all claims, obligations, penalties and                
          remedies related to the allegations in the complaint, but they              
          did not admit or deny any of the allegations.  We find that the             
          DOL in the Consent Judgment did not rule on whether a prohibited            
          transaction occurred.  Therefore, the IRS' position is not                  
          contrary to the DOL's position in the Consent Judgment.                     
               Furthermore, the Consent Judgment expressly provided that it           
          was not binding on any government agency other than the DOL.  By            
          its terms, the Consent Judgment did not limit respondent's                  
          authority to determine excise tax deficiencies regarding the                
          assignment of accounts receivable.  Thoburn v. Commissioner, 95             
          T.C. 132, 143 (1990).14                                                     
               We hold that the Consent Judgment does not prevent                     
          respondent from determining an excise tax under section 4975(a)             
          and (b) against petitioner.  As previously indicated, we sustain            
          respondent's determination.                                                 

               14  In Thoburn v. Commissioner, 95 T.C. 132, 143 (1990), the           
          Court, in interpreting the DOL settlement at issue, noted that it           
          was a contract, and its effect should be governed by the                    
          principles applicable to contracts.  Therefore, the Court looked            
          to the objectively manifested intent of the parties.  Id.                   

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