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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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