Michael Morrissey - Page 20

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            Petitioner, the disqualified person, also was not the MPP's               
            sole beneficiary.  Because the MPP was not "in a financial                
            position not worse than that in which it would be if the                  
            disqualified person were acting under the highest fiduciary               
            standards", see sec. 4975(f)(5), we sustain respondent's                  
            determination that petitioner is liable for the second-tier               
            excise tax under section 4975(b).  In so doing, we note that              
            sections 4961(a) and 4963(e)(1) generally allow for the                   
            abatement of a section 4975(b) second-tier tax if the                     
            prohibited transaction giving rise thereto is corrected within            
            90 days after our decision sustaining the tax becomes final.              
            Because the issue of whether petitioner will or would qualify             
            for an abatement is not yet ripe for decision, we express no              
            opinion on this issue at this time.                                       
                 Turning to the additions to tax determined by respondent             
            under section 6651(a)(1), petitioner argues that these                    
            additions do not apply because the law governing a transfer of            
            property to a pension plan in repayment of a loan was uncertain           
            when he transferred the real estate to the MPP, and it is still           
            uncertain today.  Respondent agrees that the law governing a              
            transfer of property to a pension plan was uncertain before               
            Commissioner v. Keystone Consol. Indus., Inc., 508 U.S. 152               
            (1993), but points out that the Commissioner, in recognition of           
            this uncertainty, published rules under which taxpayers could             





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