Joseph R. Rollins - Page 23

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               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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