Westchester Plastic Surgical Associates, P.C. - Page 16




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          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.                                            





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