Joseph R. Rollins - Page 31

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          ERISA ‘74 labor law provisions and the tax law provisions.                  
          Section 406(b)(1) and (3) of ERISA ‘74 (codified as 29 U.S.C.               
          1106(b)(1) and (3)) corresponds to subparagraphs (E) and (F) of             
          section 4975(c)(1).  However, the tax law does not have an                  
          equivalent of section 406(b)(2) of ERISA ‘74:                               
               (b)  A fiduciary with respect to a plan shall not--                    
                    *      *      *      *      *      *      *                       
                    (2) in his individual or in any other capacity act                
               in any transaction involving the plan on behalf of a                   
               party (or represent a party) whose interests are                       
               adverse to the interests of the plan or the interests                  
               of its participants or beneficiaries * * *.                            
               The statement of managers, H. Conf. Rept. 93-1280, supra at            
          309, 1974-3 C.B. at 470, explains this difference between the               
          labor and tax titles as follows:                                            
                    In addition, the labor provisions (but not the tax                
               provisions) prohibit a fiduciary from acting in any                    
               transaction involving the plan on behalf of a person                   
               (or representing a party) whose interests are adverse                  
               to the interests of the plan or of its participants or                 
               beneficiaries.  This prevents a fiduciary from being                   
               put in a position where he has dual loyalties, and,                    
               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.)                                            
               Thus, it appears that a conflict of interest involving a               
          fiduciary’s obligations to the other party in a transaction may             
          be actionable under the labor title, but it may be that such a              
          conflict of interest by itself may not be actionable under                  
          section 4975(c)(1)(E).                                                      





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