162
Stevens, J., dissenting
We feel that the Commissioner's construction of § 4975 is a sensible one. A transfer of encumbered property, like the transfer of unencumbered property to satisfy an obligation, has the potential to burden a plan, while a transfer of property that is neither encumbered nor satisfies a debt presents far less potential for causing loss to the plan.3
IV
The judgment of the Court of Appeals is reversed.
It is so ordered.
Justice Stevens, dissenting.
For the reasons stated in the opinions of the Tax Court, 60 TCM 1423 (1990), ¶ 90,628 P-H Memo TC, and the Court of Appeals, 951 F. 2d 76 (CA5 1992), I am persuaded that the transfer of unencumbered property to a pension trust is not a "sale or exchange" prohibited by 26 U. S. C. § 4975(c)(1)(A) of the Internal Revenue Code. I would merely add these two observations.
fall within the prohibition of § 4975(c)(1)(A). On the other hand, the property contribution is impermissible if the property is encumbered, because § 4975(f)(3) specifically prohibits all contributions of encumbered property.
3 We note, in passing, that the parties and the amicus have argued strenuously the issue whether we should afford deference to the interpretation of the statute by the two agencies charged with administering it. See Brief for Petitioner 29-32; Brief for Respondent 39-42; Reply Brief for Petitioner 18-20; Brief for Pension Benefit Guaranty Corporation as Amicus Curiae 10-13.
It does appear that the Department of Labor and the Internal Revenue Service consistently have taken the position that a sponsoring employer's transfer of unencumbered property to a pension plan to satisfy its funding obligation is a prohibited sale or exchange. See Department of Labor Advisory Opinion 81-69A, issued July 28, 1981; Department of Labor Advisory Opinion 90-05A, issued March 29, 1990; Rev. Rule 81-40, 1981-1 Cum. Bull. 508; Rev. Rule 77-379, 1977-2 Cum. Bull. 387.
We reach our result in this case without reliance on any rule of deference. Because of the nature and limitations of these rulings, we express no view as to whether they are or are not entitled to deference. The resolution of that issue is deferred to another day.
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