- 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”.
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