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that the instant case is distinguishable from O’Malley. In
O’Malley, the record showed that the plan paid the taxpayer’s
legal fees, and the taxpayer did not dispute the Commissioner’s
contention that this use of the plan’s assets benefited the
taxpayer and thus constituted a prohibited transaction. O’Malley
v. Commissioner, 96 T.C. at 650. Petitioner states on brief that
in the instant case “there were no expenses paid by the Plan on
behalf of the Petitioner.” Firstly, petitioner’s statement on
brief cannot substitute for petitioner’s failure to provide
evidence of record. Secondly, as the ERISA ‘74 conference
statement of managers extract shows, even the use of a plan’s
assets to enhance the price of a security can constitute a
benefit within the meaning of section 4975(c)(1)(D). H. Conf.
Rept. 93-1280, supra at 303, 1974-3 C.B. at 469. The record in
the instant case does not enable us to find that the loans did
not enhance, or were not intended to enhance, the values of
petitioner’s equity interests in the Borrowers.
Petitioner contends that Etter v. J. Pease Const. Co., Inc.,
963 F.2d 1005 (7th Cir. 1992), is “a critical case in this area”.
The cited Court of Appeals opinion deals with a number of issues.
We assume petitioner intends us to focus on that part of the
Etter opinion dealing with whether an employees plan’s investment
in a joint venture “constituted a use of the * * *[employees
plan’s] assets for the benefit of a party in interest [in the tax
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