Flahertys Arden Bowl, Inc. - Page 12




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               a disqualified person is involved in a transaction in a                
               capacity other than as a fiduciary acting only as such.  * *           
               *                                                                      
          Furthermore, the conference report indicates that Congress                  
          intended that the definition of “party-in-interest” in the labor            
          provisions not coincide in every respect with the definition of a           
          “disqualified person” in the tax provisions.  It states:                    
                    Under the tax provisions, the same general categories             
               of persons are disqualified persons, with some differences.            
               Although fiduciaries are disqualified persons under the tax            
               provisions, they are to be subject to the excise tax only if           
               they act in a prohibited transaction in a capacity other               
               than that of a fiduciary.  Also, only highly-compensated               
               employees are to be treated as disqualified persons, not all           
               employees of an employer, etc.  [H. Conf. Rept. 93-1280,               
               supra at 323, 1974-3 C.B. at 484.]                                     
               Under the labor provisions the potential liability runs                
          directly to the fiduciary for breaches of his or her duties.                
          Under section 4975, however, the liability runs not to a                    
          fiduciary as such but to disqualified persons and applies whether           
          or not a fiduciary breached his duties under ERISA section                  
          404(a).  See Westoak Realty and Inv. Co., Inc. v. Commissioner,             
          999 F.2d 308, 311 (8th Cir. 1993), affg. T.C. Memo. 1992-171;               
          Leib v. Commissioner, 88 T.C. 1474, 1481 (1987).  We do not find,           
          therefore, that the legislative history alters our conclusion               
          that the exception contained in ERISA section 404(c)(1) is not              
          incorporated into the section 4975 definition of a fiduciary.               










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