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law, a ‘disqualified person’] and, thus, is prohibited by 29
U.S.C. � 1106(a)(1)(D) [sec. 4975(c)(1)(D)].” 963 F.2d at 1010.
The Court of Appeals summarized as follows the parties’
contentions on that issue, and the Court of Appeals’ conclusions,
idem.:
Etter [the plan participant] argues that Pease and
Miller [the plan trustees] benefitted from the Plan’s
investment in that they secured various tax advantages
while not risking as much of their personal assets.
Conversely, appellees [the plan trustees] argue, as the
district court found, that by contributing less than
100% of the purchase price Pease and Miller enabled the
Plan to take advantage of a valuable opportunity.
These two views of the evidence, as different as
they may be, are both permissible, and the district
court’s account is plausible. Therefore, the finding
of the district court “cannot be clearly erroneous.”
Anderson v. City of Bessemer City, 470 U.S. 564, 574
(1985).
We agree with petitioner that Etter is significant. The Court of
Appeals makes it plain that an employees plan’s assets could be
used for the benefit of a disqualified person, in violation of
section 4975(c)(1)(D), even though none of the employees plan’s
assets were transferred to the disqualified person. The
resolution of the benefit issue depends on whether the party
having the burden of proof has carried that burden on the basis
of the evidence in the record. Our evaluation of the sparse
evidence in the record of the instant case, consistent with
Etter, convinces us that petitioner has failed to carry his
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