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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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