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burden of proving that he did not use the Plan’s assets for his
own benefit.
Our conclusion as to section 4975(c)(1)(D) makes it
unnecessary for us to determine whether the loans also violated
section 4975(c)(1)(E). In particular, we do not decide whether
we agree with respondent’s contention on brief that petitioner’s
ownership interests in the Borrowers--
created a conflict of interest between the Plan and the
companies, resulting in dividing his loyalties to these
entities. This conflicting interest as a disqualified
person who is a fiduciary brought petitioner within the
prohibition against dealing “with the income or assets
of a plan in his own interest or for his own account”.
I.R.C. � 4975(c)(1)(E).
We note that the regulation on which respondent relies on
this issue--section 54.4975-6(a)(5)(i), Pension Excise Tax Regs.-
-deals with “the furnishing of office space or a service” and
prohibits a fiduciary from causing “a plan to pay an additional
fee to such fiduciary* * * to provide a service”, and prohibits
an arrangement “whereby such fiduciary * * * will receive
consideration from a third party in connection with such
transaction.” None of these elements is suggested on the record
herein, and so it is not readily apparent that this regulation is
relevant to this issue.
Also, an analysis of the effect of conflict of interest,
without more, as a basis of violation of section 4975(c)(1)(E)
should take into account the statutory differences between the
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