Flahertys Arden Bowl, Inc. - Page 1

                                   115 T.C. No. 19                                    

                               UNITED STATES TAX COURT                                

                      FLAHERTYS ARDEN BOWL, INC., Petitioner v.                       
                    COMMISSIONER OF INTERNAL REVENUE, Respondent                      

               Docket No. 15223-98.               Filed September 25, 2000.           

                    F owns more than 50 percent of the stock of P.  F                 
               is a beneficiary of two retirement plans held by T.                    
               Under the terms of the plans F is authorized to direct                 
               the investments of the assets in his accounts in the                   
               plans.  F is a fiduciary under sec. 4975, I.R.C., and,                 
               under that section, P is a “disqualified person”.  Sec.                
               404(c) of the Employee Retirement Income Security Act                  
               of 1974 (ERISA), Pub. L. 93-406, 88 Stat. 829, 877,                    
               provides that if a plan beneficiary exercises control                  
               over the plan’s assets in his account, the beneficiary                 
               is not a fiduciary.                                                    
                    Held:  ERISA sec. 404(c) does not modify the                      
               definition of a fiduciary under sec. 4975, I.R.C., and                 
               P is liable for the tax imposed by that section.                       

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