- 20 - Depart. Store, Inc. v. Commissioner, 82 T.C. 869 (1984); Feroleto Steel Co. v. Commissioner, supra; see also Ada Orthopedic, Inc. v. Commissioner, supra. Additionally, in applying the prudent investor rule, it has been stated: Under ERISA, as well as at common law, courts have focused the inquiry under the "prudent man" rule on a review of the fiduciary's independent investigation of the merits of a particular investment, rather than on an evaluation of the merits alone. As a leading commentator puts it, "the test of prudence--the Prudent Man Rule--is one of conduct, and not a test of the result of performance of the investment. The focus of the inquiry is how the fiduciary acted in his selection of the investment, and not whether his investments succeeded or failed." In addition, the prudent man rule as codified in ERISA is a flexible standard: the adequacy of a fiduciary's investigation is to be evaluated in light of the "character and aims" of the particular type of plan he serves. [Donovan v. Cunningham, 716 F.2d 1455, 1467 (5th Cir. 1983); fn. ref. omitted; citations omitted.] Thus, the ultimate outcome of an investment is not proof that the investment failed to meet the prudent investor rule. See DeBruyne v. Equitable Life Assur. Socy. of U.S., 920 F.2d 457, 465 (7th Cir. 1990); see also Norton Bankruptcy Law and Practice 2d, sec. 156:9 (1997-98). By examining the totality of transgressions that Morrissey committed, we can assess whether it was an abuse of discretion for respondent to disqualify the Defined Benefit Plan. Morrissey, as sole shareholder of petitioner--the plan sponsor-- failed to make required contributions to the Defined Benefit Plan. For the plan year ended October 31, 1989, the Schedule BPage: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Next
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