- 13 - entities in which petitioner had an interest were prohibited transactions because (1) The loans were transfers of the Plan’s assets that benefited petitioner (sec. 4975(c)(1)(D)), and (2) the loans were dealings with the Plan’s assets in petitioner’s own interest (sec. 4975(c)(1)(E)). Respondent contends that petitioner benefited from the loans in that the loans enabled the Borrowers--all entities in which petitioner owned interests--to operate without having to borrow funds at arm’s length from other sources. Respondent summarizes the contentions regarding petitioner’s role as fiduciary, as follows: No documentation was provided of any security interest under the U.C.C. which would have protected the Plan against other creditors of these companies. (Stip., para. 23, 38, 41, 44, 47, 50, 61, 69) Petitioner would have had to authorize any actions the Plan took against the companies and its officers to collect its loans. Petitioner’s ownership interest in these companies created a conflict of interest between the Plan and the companies, resulting in dividing his loyalties to these entities. This conflicting interest as a disqualified person who is a fiduciary brought petitioner within the prohibition against dealing “with the income or assets of a plan in his own interest or for his own account”. I.R.C. � 4975(c)(1)(E). Petitioner maintains that, as to each of the loans: (1) The interest rate was above market interest and was paid, (2) the collateral was safe and secure and the principal was repaid, and (3) the Plan’s assets were thereby diversified and thus the Plan’s portfolio’s risk level was “significantly lowered”.7 7 The record does not indicate (1) either the magnitude or (continued...)Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
Last modified: May 25, 2011