- 16 - investments. Respondent further contends that the 23 loans were not isolated incidents but reflected an investment policy benefiting the plan trustee as an individual. Additionally, respondent contends that the 23 loans did not comply with the Defined Benefit Plan provisions.12 Whether a plan has been operated for the exclusive benefit of employees and their beneficiaries is determined on the basis of the facts and circumstances. See Feroleto Steel Co. v. Commissioner, 69 T.C. 97, 107 (1977); sec. 1.401-1(b)(3), Income Tax Regs.; see also Bernard McMenamy, Contractor, Inc. v. Commissioner, 442 F.2d 359 (8th Cir. 1971), affg. 54 T.C. 1057 (1970); Time Oil Co. v. Commissioner, 258 F.2d 237, 238-239 (9th Cir. 1958), remanding 26 T.C. 1061 (1956). If a violation of the exclusive benefit rule is found, then we look to the totality of the transgressions that occurred in assessing whether it is an abuse of discretion for the Commissioner to disqualify the plan. The discretion to disqualify a plan should be exercised with restraint, however, because the Department of Labor and the Internal Revenue Service have a broad range of alternative remedies available to ensure that a trust is properly 12Again, we note that respondent has combined the Money Purchase Plan and the Defined Benefit Plan, as we have previously found that Morrissey made a series of six loans to himself from the Defined Benefit Plan assets.Page: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
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