T.C. Memo. 1996-378
UNITED STATES TAX COURT
GAYLORD W. GREENLEE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 16615-94. Filed August 15, 1996.
P was the sole participant and plan administrator
of a pension plan for corporation A and owned 18
percent of an unrelated corporation, C. In 1982, P
requested the plan's independent trustee to consider
lending trust funds to C. The trustee had full
investment discretion under the plan's trust document
and authorized the loan.
Held: P is not subject to the 5-percent excise
tax of sec. 4975(a), I.R.C., because he did not engage
in a prohibited transaction under sec. 4975(c)(1)(E),
I.R.C.
Gaylord W. Greenlee, pro se.
Julia L. Wahl, for respondent.
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MEMORANDUM OPINION
LARO, Judge: Gaylord W. Greenlee petitioned the Court to
redetermine respondent's determinations of the following Federal
excise tax deficiencies and additions thereto.
Excise Tax Excise Tax Additions to Tax
Sec. Sec. Sec.
Year 4975(a) 4975(b) 6651(a)(1)1
1985 $1,711 --- $428
1986 2,364 --- 591
1987 3,084 --- 771
1988 3,872 --- 968
1989 4,721 --- 1,180
1990 5,599 $111,839 1,400
1
In the notice of deficiency, respondent determined the
additions to tax as follows:
Additions to Tax
Sec.
Year 6651(a)(1)
1985 $ 813
1986 1,123
1987 1,403
1988 1,529
1989 1,581
1990 1,539
Then, in her reply brief, she conceded that the correct additions
to tax are as stated in the text.
The primary issue for decision is whether petitioner engaged
in a prohibited transaction so as to be subject to the first-tier
excise tax under section 4975(a). We hold he did not. Based on
our holding, we also hold that petitioner is not subject to the
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second-tier excise tax under section 4975(b) and the additions to
tax under section 6651(a)(1). Unless otherwise indicated,
section references are to the Internal Revenue Code applicable to
the years in issue. Rule references are to the Tax Court Rules
of Practice and Procedure.
Background
This case has been submitted fully stipulated under
Rule 122. The stipulations and the exhibits attached thereto are
incorporated herein by this reference. Petitioner resided in
Prospect, Pennsylvania, when he filed his petition.
Petitioner is the sole participant and the plan
administrator of the Gaylord W. Greenlee, P.C., Profit Sharing
Plan and Trust (Plan).1 Article X of the Plan document sets
forth the following responsibilities for the plan administrator:
The Plan Administrator shall, as named fiduciary,
have exclusive authority to control and manage the
operation and administration of the Plan. The Plan
Administrator shall perform all general administration
duties under the Plan, including (but not limited to)
the following:
(a) To determine all questions relating to the
eligibility of Employees to participate or to continue
participation;
(b) To compute, certify and direct the Trustee
with respect to the amount and kind of benefits to
which any Participant or Beneficiary is entitled;
1
Petitioner is, and at all relevant times was, a lawyer
duly licensed to practice in Pennsylvania.
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(c) To authorize and direct the Trustee with
respect to all disbursements from the Trust Fund;
(d) To maintain all records and, if the Employer
has so elected in * * * [the Adoption Agreement], the
books of account necessary for the administration of
the Plan;
(e) To interpret the provisions of the Plan and
to make and publish such interpretive or procedural
rules as are not inconsistent with the Plan and
applicable law;
(f) To advise the Trustee regarding the short and
long term liquidity needs of the Plan in order that the
Trustee might accordingly manage the investment of Plan
assets;
(g) To advise and assist any Participant or
Beneficiary regarding any rights, benefits or elections
available under the Plan;
(h) To prepare and file such reports and
documents as may be required under ERISA, the Internal
Revenue Code, or other applicable law;
(i) To provide to Participants and Beneficiaries
such information and Plan descriptions, reports or
copies of Plan documents as may be required by law;
(j) To dispose of claims for benefits under the
Plan by Participants or Beneficiaries, pursuant to
* * * [the plan's "Claim Procedure" provision]
(k) To perform such other duties under the Plan
as may be assigned by the Employer.
Union National Bank of Pittsburgh (Union National Bank) is
the sole trustee of the Plan's trust. Article XI of the Plan
document sets forth the following provisions concerning the
trustee's responsibilities:
The Employer establishes with the Trustee a trust
consisting of such sums of money, and such property
acceptable to the Trustee, as shall from time to time
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be contributed under the Plan and paid or delivered to
the Trustee. All such money and property, all
investments and reinvestments made therewith and
proceeds thereof, and all earnings and profits therein,
less any losses thereon, and less the payments which at
the time of reference shall have been made by the
Trustee as authorized herein are referred to as the
"Trust Fund." The Trustee shall hold, invest, and deal
with the Trust Fund in accordance with this Prototype
Plan and Trust Agreement, the Adoption Agreement and
ERISA.
* * * * * * *
Except to the extent the Trustee is directed under
* * * [the provision on "Investment in Life Insurance
Contracts"] to invest in life insurance contracts, the
Trustee shall invest and reinvest the Trust Fund,
without distinction between principal and income, and
without liability for the payment of interest thereon,
in such property as the Trustee in its sole discretion
deems advisable, except that such discretion shall be
exercised in compliance with any funding-policy
guidelines communicated to the Trustee pursuant to
* * * [the provision on "Plan Funding Policy"]. The
Trustee shall not be obligated to restrict Trust Fund
investments to property of a character authorized for
investment by trustees under the law of any state,
district or territory.
* * * * * * *
The Trustee shall not engage in or cause the Trust to
engage in any transaction if it knows or should know,
through normal business sources (excepting information
received by any of its departments other than the Trust
Department, which shall not be imputed to the Trustee),
that such transaction constitutes a prohibited
transaction under ERISA which has not been exempted by
the Secretary of Labor from the restrictions otherwise
imposed upon prohibited transactions by ERISA.
The Employer shall provide the Trustee with such
information concerning the relationship between any
person or organization and the Plan or the Employer as
the Trustee may reasonably request in order to
determine whether or not such person or organization is
a party-in-interest with respect to the Plan.
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* * * * * * *
Except as otherwise provided in * * * [the Adoption
Agreement](relating to accounting duties), the Trustee
shall not be responsible for administration or
interpretation of the Plan, but shall be responsible
solely for the investment and safekeeping of the Trust
Fund.
On August 28, 1982, petitioner, as plan administrator,
requested the trustee, Union National Bank, to lend $60,000 to
Tag Land, Inc. (Tag Land). In connection with this loan, Tag
Land executed a note and granted the Plan a first lien on a tract
of land in Pennsylvania with a value of at least $375,000. On
September 3, 1982, the Trust Investment Committee of Union
National Bank approved this investment and forwarded the $60,000
to petitioner to send to Tag Land. When the Plan lent the
$60,000 to Tag Land, petitioner owned 18 percent of Tag Land's
stock. Petitioner has owned this 18-percent interest since 1982.
The loan bore interest at the rate of 15 percent per year
and was payable quarterly, until September 1, 1985, when the
principal was due. Since the execution of the loan, Tag Land has
made the following payments on the loan:
Oct. 4, 1982: quarterly interest payment
Feb. 25, 1983: quarterly interest payment
July 21, 1989: $2,000
Apr. 30, 1990: $5,643
Petitioner has never filed a Form 5330, Return of Excise Taxes
Related to Employee Benefit Plans.
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Discussion
The primary issue we must decide is whether petitioner
engaged in a prohibited transaction so as to be subject to the
first-tier excise tax under section 4975(a). Section 4975(a)
imposes a 5-percent excise tax on any disqualified person who
participates in a prohibited transaction.
Respondent determined that petitioner is a disqualified
person under section 4975(e)(2)(A), (E), and (H) who engaged in a
prohibited transaction under section 4975(c)(1)(D) and (E).
Respondent's determination is presumed correct, and the burden is
on petitioner to disprove her determination. Rule 142(a);
Welch v. Helvering, 290 U.S. 111, 115 (1933); Laird v.
Commissioner, 85 F.2d 598, 599 (3d Cir. 1935), affg. 29 B.T.A.
196 (1933). Petitioner argues that he is not a disqualified
person who engaged in a prohibited transaction or, alternatively,
that he should be exempt from the excise tax.
A. "Disqualified Person"
The term "disqualified person" includes fiduciaries and
people owning 50 percent or more of the corporation sponsoring
the Plan. Sec. 4975(e)(2)(A), (E). "Fiduciaries" include
persons who exercise discretionary authority over the management
of a plan or its assets. Sec. 4975(e)(3). A plan administrator
is a fiduciary where he or she has the day-to-day administrative
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responsibilities for the plan and the duty to notify
beneficiaries and participants on plan matters. Landry v. Air
Line Pilots Association Intl., 901 F.2d 404, 420 (5th Cir. 1990).
Petitioner is a disqualified person under section
4975(e)(2)(E) because he owned 100 percent of the corporation
sponsoring the pension plan. Petitioner is also a disqualified
person under section 4975(e)(2)(A). The Plan document gives the
plan administrator general administrative duties including the
discretion to interpret plan provisions, provide participants and
beneficiaries with plan information, and dispose of benefit
claims. Since petitioner has discretion to manage the
administrative aspects of the Plan, he is a fiduciary and a
disqualified person. See sec. 4975(e)(2)(A) and (3).
B. "Prohibited Transaction"
Respondent determined that petitioner engaged in a
prohibited transaction under section 4975(c)(1)(D) and (E).
However, in her posttrial briefs, respondent claims only that
petitioner engaged in a prohibited transaction under section
4975(c)(1)(E). Where the Commissioner fails to address an issue
in her opening or reply brief, we may deem that she waived that
issue. See Levert v. Commissioner, T.C. Memo. 1989-333, affd.
without published opinion 956 F.2d 264 (5th Cir. 1992).
Accordingly, we find that respondent conceded the section
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4975(c)(1)(D) issue, and we limit our discussion to section
4975(c)(1)(E).
Under section 4975(c)(1)(E), a disqualified person engages
in a prohibited transaction when, as a fiduciary, he or she
"deals with the income or assets of a plan in his [or her] own
interest or for his [or her] own account". The regulations
provide that "A fiduciary does not engage in an act described in
section 4975(c)(1)(E) if the fiduciary does not use any of the
authority, control or responsibility which makes such person a
fiduciary to cause a plan to [perform the act in question]".
Sec. 54.4975-6(a)(5)(ii), Qualified Pension Plan Excise Tax Regs.
A fiduciary does not "[deal] with * * * assets of a plan in his
[or her] own interest" when he or she absents himself or herself
from all consideration of the investment proposal and the
trustees make an independent investment decision. See sec.
54.4975-6(a)(6), Example (7), Qualified Pension Plan Excise Tax
Regs.
The policy behind the enactment of section 4975 was to tax
fiduciaries who engage in self-dealing rather than "innocent
employees." S. Rept. 93-383, at 95 (1974), 1974-3 C.B. (Supp.)
80, 174. Before the enactment of section 4975, prohibited
transactions would lead to the disqualification of a pension
plan. Id. at 94, 1974-3 C.B. (Supp.) at 173. This
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disqualification would result in the denial of favorable tax
consequences, such as an employee's deferral of taxation. Id.
Congressional activity in this area is largely designed to
protect participants against the "detrimental operation of the
plan." See Pawlak v. Commissioner, T.C. Memo. 1995-7. The
regulations incorporate this policy by suggesting that
fiduciaries must act with "undivided loyalty" to the plan.2 The
general rationale behind these provisions is "to make sure that
those who do participate in such [qualified pension] plans do not
lose their benefits as a result of unduly restrictive forfeiture
provisions." H. Rept. 93-807, at 1, 2 (1974), 1974-3 C.B.
(Supp.) 236, 237. Instead, the sanctions should be imposed
ultimately on the trustee because "trustees generally are to have
2
See sec. 54.4975-6(a)(5)(i), Qualified Pension
Plan Excise Tax Regs., which provides:
The prohibitions of [section] 4975(c)(1)(E)
and (F) supplement the other prohibitions of
section 4975(c)(1) by imposing on
disqualified persons who are fiduciaries a
duty of undivided loyalty to the plans for
which they act. These prohibitions are
imposed upon fiduciaries to deter them from
exercising the authority, control, or
responsibility which makes such persons
fiduciaries when they have interests which
may conflict with the interests of the plans
for which they act. In such cases, the
fiduciaries have interests in the
transactions which may affect the exercise of
their best judgment as fiduciaries. * * *
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the exclusive authority to manage and control plan assets."
H. Conf. Rept. 93-1280, at 294 (1974), 1974-3 C.B. 415, 455
(emphasis added); S. Rept. 93-383, supra at 95, 1974-3 C.B.
(Supp.) at 173.
Petitioner did not use any of the "authority, control, or
responsibility which makes [him] a fiduciary" to lend the $60,000
to Tag Land. See sec. 54.4975-6(a)(5), Qualified Pension Plan
Excise Tax Regs. Petitioner was absent at the trustee's
discussions regarding the advisability of the loan to Tag Land,
and the Trust Investment Committee of the trustee independently
approved the investment. See sec. 54.4975-6(a)(6), Example (3),
Qualified Pension Plan Excise Tax Regs. Accordingly, the
trustee, rather than the plan administrator, "[dealt] with" the
"income or assets" of the Plan in the subject transaction.
The Plan explicitly states that the trustee should not cause
the trust to engage in any prohibited transaction under the
Employee Retirement Income Security Act of 1974 (ERISA), Pub. L.
93-406, 88 Stat. 829, provisions.3 It requires the employer to
3
The Plan document provides that it is the trustee that
shall not engage in or cause the Trust to
engage in any transaction if it knows or
should know, through normal business sources
* * * that such transaction constitutes a
prohibited transaction under ERISA which has
not been exempted by the Secretary of Labor
(continued...)
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provide the trustee "with such information concerning the
relationship between any person or organization and the Plan or
the Employer as the Trustee may reasonably request in order to
determine whether or not such person or organization is a
party-in-interest with respect to the Plan." Although the Plan
document refers to prohibited transactions under ERISA rather
than the Internal Revenue Code (Code) specifically, the Code
provisions at issue were included in ERISA. See H. Conf. Rept.
93-1280, supra at 294, 1974-3 C.B. at 415.
Further, the Plan document provides that the plan
administrator shall make administrative decisions and the trustee
shall make independent investment decisions. Petitioner
requested the independent trustee of the Plan to make a loan from
the pension trust to a corporation in which he had an 18-percent
stock ownership interest. Although petitioner suggested the
transaction to the trustee, the trustee had exclusive discretion
to make investment decisions for the Plan. Petitioner's
recommendations were simply suggestions. Under the Plan
document, the plan administrator's responsibilities were
described as "general administrative duties". This
administration included interpreting the Plan provisions,
(...continued)
from the restrictions otherwise imposed upon
prohibited transactions by ERISA.
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determining eligibility of employees, and maintaining all Plan
records.
In contrast, the trustee had "sole discretion" to make
investment decisions for the Plan. The trustee was "responsible
solely for the investment and safekeeping of the Trust Fund."
The trustee had the broad power to "invest and reinvest the Trust
Fund, without distinction between principal and income, and
without liability for the payment of interest thereon, in such
property as the Trustee in it sole discretion deems advisable".
This power included the power to withdraw funds from the Plan's
trust, the power to diversify its investments, the power to
invest in mortgages and evidences of indebtedness, and the power
to value its investments. The trustee would generally not be
liable for "any loss sustained by the Trust Fund".
The trustee had the discretion and authority to accept or
reject petitioner's recommendation. When the Trust Investment
Committee of the trustee approved the loan, it did so
independently of petitioner's suggestion. It conditioned its
decision on petitioner's forwarding of the recorded mortgage and
appraisal. Petitioner did not "[deal] with the income or assets
of a plan in his own interest or for his own account" and
accordingly, did not engage in a prohibited transaction. See
sec. 4975(c)(1)(E).
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Since petitioner did not engage in a prohibited transaction,
he is not liable for the first tier excise-tax, the second-tier
excise tax, or the additions to tax determined by respondent.
See secs. 4975(a) and (b), 6651(a)(1). We have
considered all arguments made by respondent for a contrary
holding and, to the extent not discussed above, find them to be
without merit.
To reflect the foregoing,
Decision will be entered
for petitioner.