Flahertys Arden Bowl, Inc. - Page 15




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          10734.  The 1991 proposed regulations took the same position with           
          respect to ERISA section 404(c).  The 1991 proposed regulations             
          noted that “There is no provision in the Internal Revenue Code              
          corresponding to section 404”.  Id. at 10734.  Proposed                     
          regulations are not authoritative.  On the other hand, “proposed            
          regulations can be useful as guidelines where they closely follow           
          the legislative history of the act.”  Van Wyk v. Commissioner,              
          113 T.C. 440, 444 (1999).                                                   
               Petitioner contends that since the Department of Labor                 
          failed to issue final regulations until 1992, the exception to              
          the definition of a fiduciary provided by ERISA section 404(c),             
          29 U.S.C. section 1104(c), should apply throughout ERISA                    
          including the tax provisions.  Because the Department of Labor              
          failed to issue final regulations on this point until 1992,                 
          petitioner contends that respondent is not in a position to argue           
          that separate definitions of a fiduciary apply for the two                  
          titles.  However, the absence of final regulations does not                 
          render the provisions of section 4975 inoperative.  Cf.                     
          Occidental Petroleum Corp. v. Commissioner, 82 T.C. 819, 829                
          (1984).                                                                     
          II.  Additions to Tax Under Section 6651(a)(1)                              
               The parties agree that, if petitioner is liable for the                
          excise taxes under section 4975, excise tax returns should have             
          been filed.  Section 6651(a) imposes an addition to tax for                 






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