Edward Clasby and C.T. Garrahan Insurance Agency, Inc. - Page 15




                                       - 15 -                                         

          an officer or director.  We disagree.                                       
               Any individual who is an officer or director (or any                   
          individual who has powers or responsibilities similar to those of           
          officers or directors) of an employer any of whose employees are            
          covered by the plan is a disqualified person.  Sec.                         
          4975(e)(2)(H); Rutland v. Commissioner, 89 T.C. 1137, 1144                  
          (1987).  Petitioner was vice president of FUH and a member of its           
          board of trustees and its executive committee from 1981 to July             
          1982, when FUH bought the insurance policies from Travelers, and            
          was an officer of FUH from 1982 to 1988.  See, e.g., Zabolotny v.           
          Commissioner, 97 T.C. 385, 392 (1991) (the taxpayer was a                   
          disqualified person under section 4975(e)(2)(H) because he was an           
          officer of the corporation whose employees participated in the              
          plan), affd. in part and revd. in part on another ground 7 F.3d             
          774 (8th Cir. 1993); Kadivar v. Commissioner, T.C. Memo. 1989-404           
          (the taxpayer was held to be a disqualified person under section            
          4975(e)(2)(H) because he was the president of the corporation               
          sponsoring the plan).                                                       
               Petitioners argue that a person's actions, and not his or              
          her job title, determine whether that person is a fiduciary or              
          other disqualified person under section 4975.  Petitioners rely             
          on two District Court cases involving petitioners and others at             
          FUH.  In Framingham Union Hosp., Inc. v. Travelers Ins. Co., 721            
          F. Supp. 1478 (D. Mass. 1989), FUH alleged that Walckner,                   
          petitioner, the Garrahan Agency, and others violated the                    
          prohibitions of the Employee Retirement Income Security Act of              

Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  Next

Last modified: May 25, 2011