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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
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