- 12 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: May 25, 2011