- 17 - The District Court held that nonfiduciaries are not liable for knowingly participating in a breach of fiduciary duty. Id. at 33. Petitioners' reliance on that case is misplaced because the basis for liability of a disqualified person for the section 4975 excise tax differs from the basis for liability of a fiduciary under ERISA section 406(a), 88 Stat. 879. See O'Malley v. Commissioner, 96 T.C. 644, 650-651 (1991), affd. 972 F.2d 150 (7th Cir. 1992). A fiduciary is liable under ERISA section 406(a) if he or she knowingly caused the plan to engage in a transaction described in ERISA section 406(a)(1). A fiduciary need not participate in the transaction to be liable under ERISA section 406(a). In contrast, a disqualified person is liable for the section 4975(a) excise tax if he or she participates in the transaction even if that person may have acted innocently or in good faith or otherwise did not know or understand the nature of the transaction. O'Malley v. Commissioner, supra at 651; Rutland v. Commissioner, 89 T.C. 1137 (1987). We have found above at paragraphs II-B-1 and II-B-2 that petitioner was a disqualified person because he participated in a prohibited transaction. 3. Conclusion We conclude that petitioner was a disqualified person under section 4975(e)(2), and that he is liable for the 5-percent excise tax imposed by section 4975(a). C. Whether the Garrahan Agency Was a Disqualified Person The Garrahan Agency is a disqualified person if it provided services to the plan, section 4975(e)(2)(B), or if 50 percent orPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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