Cite as: 518 U. S. 213 (1996)
Opinion of the Court
pension plan to pay the Government 10 percent of any accumulated funding deficiency. If the employer fails to correct the deficiency before the earlier of a notice of deficiency under § 4971(a) or an assessment of the § 4971(a) exaction, the employer is obligated to pay an additional "tax" of 100 percent of the accumulated funding deficiency. § 4971(b).9 The obviously penal character of these exactions is underscored by other provisions, including one giving the Pension Benefit Guaranty Corporation (PBGC) an entirely independent claim against the employer for "the total amount of the unfunded benefit liabilities," 29 U. S. C. § 1362(b)(1)(A) (a claim which in this case the PBGC has asserted and which is still pending, see Pension Benefit Guaranty Corporation v. Reorganized CF&I Fabricators of Utah, Inc., 179 B. R. 704 (ND Utah 1994)); see also §§ 1306-1307. We are, indeed, unable to find any provision in the statutory scheme that would cast the "tax" at issue here in anything but this punitive light.
D
The legislative history reflects the statute's punitive character:
9 The Government contends that § 4971(b) is more similar to a penalty than § 4971(a) is, because the Secretary of the Treasury can waive liability under the former but not the latter. The suggestion is that the Secretary can waive the imposition of the 100 percent tax, under ERISA § 3002(b), 88 Stat. 997, or can eliminate a violation by reducing the employer's funding requirement, see 26 U. S. C. § 412(d); see also 29 U. S. C. § 1083(a). But §§ 412(d) and 1083(a) provide for waiver of the minimum funding requirements, so their application would avoid a violation of either §§ 4971(a) or (b); there simply would be no "accumulated funding deficiency" for purposes of either §§ 4971(a) or (b). Thus the Government is incorrect in suggesting that the Secretary has the ability to waive the exaction under § 4971(b) but not under § 4971(a).
More fundamentally, even if the Secretary could waive only § 4971(b), it is not clear why this would make any difference, as the exaction would still serve to reinforce a federal prohibition.
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