- 23 - therefore, he cannot act exclusively for the benefit of a plan’s participants and beneficiaries. (This prohibition is not included in the tax provisions, because of the difficulty in determining an appropriate measure for an excise tax.) [Id. at 309, 1974-3 C.B. at 470.] * * * * * * * Following present law with respect to private foundations, under the substitute where a fiduciary participates in a prohibited transaction in a capacity other than that, or in addition to that, of a fiduciary, he is to be treated as other disqualified persons and subject to tax. Otherwise, a fiduciary is not to be subject to the excise tax. [Id. at 321, 1974-3 C.B. at 482.] After enacting ERISA ‘74, the Congress took a similar approach in section 4951, enacted by section 4(c)(1) of the Black Lung Benefits Revenue Act of 1977, Pub. L. 95-227, 92 Stat. 11, 18. d. Prohibited Transactions Each of the transactions, listed supra in table 1, was a loan. Respondent does not contend that any of the transactions fits under section 4975(c)(1)(B) (“any direct or indirect--(B) lending of money or other extension of credit between a plan and a disqualified person”), but focuses only on subparagraphs (D) and (E) of section 4975(c)(1). We consider first whether any of the transactions fits under section 4975(c)(1)(D)--“any direct or indirect--(D) transfer to, or use by or for the benefit of, a disqualified person of the income or assets of a plan”.Page: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Next
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