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We disagree with the tax matters partner that the
contribution agreement and ratification effect the transfer
of legal title to the Saztec stock to the partnership and
then to the trust. First, as we read it, the contribution
agreement is not an unconditional assignment and transfer
of the underlying stock. Under its terms, it operates only
to the extent that the partnership is obligated to make
contributions to the plan and Mr. Stein is obligated to
reimburse the partnership for those contributions.
However, as quoted above, section 8.2 of the plan document
states that the plan is entirely voluntary on the part of
the partnership and further states that "its continuance
and the payment of contributions hereunder are not assumed
as contractual obligations of the Firm [partnership] and
the Plan shall have no cause of action against the Firm."
We note that the partnership may be subject to excise tax
under section 4971 if there is an accumulated funding
deficiency for a plan year computed as of the end of the
plan year. Secs. 412(a), 4971(a). However, the disclaimer
further states that "The fact that the Firm becomes subject
to any tax or penalty by having failed to make a
contribution shall not give rights under or to this Plan to
require contributions." In light of this disclaimer by the
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