Flahertys Arden Bowl, Inc. - Page 10




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          in ERISA section 409, 29 U.S.C. section 1109.  It would appear              
          that in a participant-directed plan ERISA section 404(c)(1)                 
          exculpates from part 4 potential liability a participant                    
          exercising control over the account assets, and any person who              
          would otherwise be considered a fiduciary is relieved from the              
          liability under part 4 of ERISA for any loss resulting from the             
          participant’s exercise of control.  In the context of this case,            
          ERISA section 404(c)(1) serves to insulate the participant (Mr.             
          Flaherty) and the U.S. Bank, National Association, from the                 
          potential liability arising from any violation of the prudent man           
          standard of care contained in ERISA section 404(a), 29 U.S.C.               
          section 1104(a).  See H. Conf. Rept. 93-1280, at 305 (1974),                
          1974-3 C.B. 415, 466.                                                       
               To the contrary, section 4975(e)(3) contains the definition            
          of a fiduciary “For purposes of this section”.  There is no                 
          exception in the language of section 4975(e)(3) similar to that             
          of ERISA section 404(c)(1) for the section 4975 liability of a              
          disqualified person.  Applying the rules of statutory                       
          construction discussed supra p. 8, we, therefore, assume that               
          Congress intended a different result with respect to the section            
          4975 liability.                                                             
               Petitioner contends, however, that the legislative history             
          indicates a clear intent of Congress not only that the                      
          definitions of part 4 of ERISA and of the Internal Revenue Code             






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