T.C. Memo. 2004-130
UNITED STATES TAX COURT
RALF ZACKY, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 3539-02. Filed May 27, 2004.
Ralph G. Zacky, pro se.
Laura Beth Salant, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
LARO, Judge: Petitioner petitioned the Court to redetermine
respondent’s determination that petitioner is liable for the
following deficiencies in Federal excise tax and additions
thereto:
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First-tier Second-tier
(initial) deficiency (additional) deficiency Addition to tax
Year Sec. 4975(a) Sec. 4975(b) Sec. 6651(a)(1)
1996 $1,016 -- $254.00
1997 3,252 -- 813.00
1998 6,941 -- 1,735.25
1999 10,999 -- 2,749.75
2000 15,463 -- 3,865.75
2001 -- $124,079 12,398.00
We decide whether petitioner is liable for these amounts. We
hold he is. Unless otherwise stated, section references are to
the applicable versions of the Internal Revenue Code. Rule
references are to the Tax Court Rules of Practice and Procedure.
FINDINGS OF FACT
Some facts were stipulated. We incorporate herein by this
reference the parties’ stipulation of facts and the exhibits
submitted therewith. We find the stipulated facts accordingly.
Petitioner resided in Mentone, California, when his petition was
filed.
Aspects, Inc. (Aspects), is a C corporation of which
petitioner is the president and sole shareholder. It has a
profit sharing plan (plan) that was adopted effective December 1,
1983, and was amended on April 20, 1991. The plan is qualified
under section 401(a). The plan’s underlying trust is exempt from
Federal tax under section 501(a).
From the inception of the plan through November 7, 2001, the
date on which the notice of deficiency was issued in this case,
the plan has had many participants. One of these participants
was petitioner. Petitioner also was the plan’s sole trustee.
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Pursuant to the plan, the trustee was required to provide the
plan with services which included (1) investing, managing, and
controlling plan assets, (2) maintaining records of plan receipts
and disbursements and preparing a written annual report,
(3) borrowing and raising funds for the plan, and (4) making
loans from the plan to plan participants. From the inception of
the plan through November 7, 2001, petitioner has had access to
the plan’s books, records, and assets.
As of March 28, 1990, neither Aspects nor petitioner had the
funds necessary to pay Aspects’s payroll liability of $40,000,
which was imminently coming due. Petitioner on that date
borrowed $40,000 from the plan (first loan) to pay that
liability. The first loan was supported by a promissory note
signed by petitioner and dated March 28, 1990. The note stated
that interest of 12 percent per annum would accrue on the unpaid
principal and that repayment would be made over 5 years through
quarterly installments of $2,688.63 beginning on June 28, 1990.
The note stated that the first loan was secured by petitioner’s
vested interest in the plan. The balance of that interest was
$112,000 on March 28, 1990, and $104,106.42 on April 1, 1994.
Inland Empire Properties, Inc. (Inland), was a licensed
California corporation from June 17, 1992, until March 1, 2000.
Its business during that time was the ownership and leasing to
Aspects and other tenants of a commercial building. Inland’s
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president and sole shareholder was petitioner, and it had no
employees. On May 20, 1992, the plan lent $10,527.84 to Inland
(second loan) so that petitioner could pay off his car loan,
which was about to go into default. An unsigned document drafted
on Aspects stationery and bearing the typewritten name of
petitioner stated that the second loan was due in 1 year, that
the interest rate payable on the second loan was 6.4 percent, and
that the second loan was secured by a 1989 Pontiac Bonneville SSE
bearing a stated vehicle identification number. The document
also stated that the second loan was renewable after the first
year at the then-prevailing interest rate plus 3 percent.
Shortly after the making of the second loan, petitioner
transferred to Inland the title to the referenced 1989 Pontiac
Bonneville SSE.
On March 1, 1993, the plan lent $94,294.89 to Inland (third
loan) so that Inland could pay the mortgage and real estate taxes
due on the building. An unsigned promissory note with a
signature block for petitioner, in his capacity as Inland’s
president, stated that interest was accruing on the unpaid
principal at 5 percent per annum and that repayment was to be
made through monthly installments of $10,000 beginning on April
1, 1993. The third loan was unsecured.
To date, no principal or interest has been paid on the
first, second, or third loan (collectively, the three loans).
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The plan has during its existence made two other loans to
participants other than petitioner, and it has required that
those individuals repay those loans. Petitioner knew at the
times of the three loans that his creditworthiness was poor, and
he knew at the times of the second and third loans that Inland’s
creditworthiness was poor. When petitioner and Inland failed to
pay back the three loans according to their terms, petitioner, in
his capacity as plan trustee, neither sought nor attempted to
compel payment.
The relevant provisions of the plan are as follows:
7.2 INVESTMENT POWERS AND DUTIES OF THE TRUSTEE
(a) The Trustee shall invest and reinvest the
Trust Fund to keep the Trust Fund invested without
distinction between principal and income and in
such securities or property, real or personal,
wherever situated, as the Trustee shall deem
advisable, including, but not limited to, stocks,
common or preferred, bonds and other evidences of
indebtedness or ownership, and real estate or any
interest therein. * * *
* * * * * * *
7.4 LOANS TO PARTICIPANTS
(a) The Trustee may, in the Trustee’s
discretion, make loans to Participants and
Beneficiaries under the following circumstances:
(1) loans shall be made available to all
Participants and Beneficiaries on a reasonably
equivalent basis; (2) loans shall not be available
to Highly Compensated Employees in an amount
greater than the amount available to other
Participants and Beneficiaries; (3) loans shall
bear a reasonable rate of interest; (4) loans
shall be adequately secured; and (5) shall provide
for repayment over a reasonable period of time.
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* * * * * * *
(c) Loans made pursuant to this Section (when
added to the outstanding balance of all other
loans made by the plan to the Participant) shall
be limited to the lesser of:
(1) $50,000 reduced by the excess (if any)
of the highest outstanding balance of loans
from the plan to the Participant during the
one year period ending on the day before the
date on which such loan is made, over the
outstanding balance of loans from the plan to
the Participant on the date on which such
loan was made, or
(2) one-half (1/2) of the present value of
the non-forfeitable accrued benefit of the
Participant under the plan.
* * * * * * *
(d) Loans shall provide for level
amortization with payments to be made not less
frequently than quarterly over a period not to
exceed five (5) years.
* * * * * * *
(f) Any loans granted or renewed on or after
the last day of the first plan Year beginning
after December 31, 1988 shall be made pursuant to
a Participant loan program. Such loan program
shall be established in writing and must include,
but need not be limited to, the following:
(1) the identity of the person or positions
authorized to administer the Participant loan
program;
(2) a procedure for applying for loans;
(3) the basis on which loans will be approved or
denied;
(4) limitations, if any, on the types and amounts
of loans offered;
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(5) the procedure under the program for
determining a reasonable rate of interest;
(6) the types of collateral which may secure a
Participant loan; and
(7) the events constituting default and the steps
that will be taken to preserve plan assets.
Such Participant loan program shall be
contained in a separate written document which,
when properly executed, is hereby incorporated by
reference and made a part of the plan.
Petitioner has never filed a Form 5330, Return of Excise
Taxes, for any period relevant herein. The plan filed a Form
5500-C/R, Return/Report of Employee Benefit plan, for its plan
years ended March 31, 1991, 1992, 1993, and 1995. The plan has
not filed a Form 5500-C/R for any plan year thereafter.
The plan reported on its Form 5500-C/R for its plan year
ended March 31, 1995, that it had as of March 31, 1995, “Other”
investments of $203,241. Respondent determined that these
investments were the three loans, that each of the three loans
was a prohibited transaction under section 4975, and that the
principal of the three loans totaled $203,241 as of January 1,
1996. Respondent also determined that a “stated interest rate”
of 10 percent applied to each subject year for purposes of
computing the “amount involved” under section 4975(a) and that,
on the basis of this 10-percent rate, the amounts involved for
the subject years were as follows:
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Date Principal Interest Amount Involved
1/1/96 $203,241 10% $20,324
1/1/97 223,565 10 22,356
1/1/98 245,922 10 24,592
1/1/99 270,514 10 27,051
1/1/00 297,565 10 29,756
124,079
Respondent noted that section 53.4941(e)-1(e)(1), Foundation
Excise Tax Regs., treats prohibited transaction loans as
occurring on the first day of each taxable year in the taxable
period after the year in which the loan occurs and determined on
the basis of these regulations that petitioner owed first-tier
excise taxes as follows:
1996 1997 1998 1999 2000
$1,016 $1,016 $1,016 $1,016 $1,016
–- 2,236 2,236 2,236 2,236
-- -- 3,689 3,689 3,689
–- -- –- 4,058 4,058
–- –- -- –- 4,464
1,016 3,252 6,941 10,999 15,463
Respondent also determined on the basis of these regulations that
petitioner owed a second-tier excise tax of $124,079 for 2001.
On January 19, 1994, Aspects filed a voluntary petition for
bankruptcy. Aspects stated on that petition that it owed
$195,000 to the plan and that the plan was an unsecured creditor.
On February 6, 1995, the bankruptcy court overseeing the
bankruptcy proceeding confirmed Aspects’s “First Amended plan of
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Reorganization” (confirmed plan). Under the confirmed plan, the
plan continued to be listed as an unsecured creditor.
OPINION
Respondent determined that petitioner is liable for both
tiers of excise taxes under section 4975(a) and (b). Respondent
asserts on brief that petitioner is a “disqualified person” under
section 4975(e)(2) as to each of the three loans, that the plan
is a “plan” under section 4975(e)(1), that each of the three
loans is a “prohibited transaction” under section 4975(c), and
that none of the three loans has been “corrected” within the
meaning of section 4975(f)(5). Petitioner does not dispute that
he was a “disqualified person” as to each of the three loans. He
was. See, e.g., sec. 4975(e)(2)(A), (E).1 Nor does petitioner
1
Under subpars. (A) and (E), respectively, of sec.
4975(e)(2), a “disqualified person” is a person who is “a
fiduciary” or “an owner, direct or indirect, of 50 percent or
more of * * * the combined voting power of all classes of stock
entitled to vote or the total value of shares of all classes of
stock of a corporation * * * which is an employer” of any
employees covered by the plan. As relevant herein, petitioner
was a fiduciary (i.e., a trustee) of the plan who was the sole
owner of the stock of an employer (Aspects) whose employees were
covered by the plan. Under sec. 4975(e)(2)(G), a “disqualified
person” also is a corporation of which 50 percent or more of the
combined voting power of all classes of stock entitled to vote or
the total value of shares of all classes of stock is owned by a
person described in sec. 4975(e)(2)(A) or (E). Thus, by virtue
of its ownership by petitioner, Inland also was a disqualified
person as to the second and third loans. The possibility that
Inland may be liable for excise taxes under sec. 4975(a) or (b)
as to the second and third loans is unimportant to our analysis
in that petitioner is jointly and severally liable for any excise
tax imposed on those loans by sec. 4975(a) and (b). See sec.
(continued...)
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dispute that the plan was a “plan” within the meaning of section
4975. It was. See sec. 4975(e)(1)(A). As we understand
petitioner’s argument on brief, he is not liable for any of the
excise taxes respondent determined because none of the three
loans is a prohibited transaction. The three loans are not
prohibited transactions, petitioner asserts, because (1) the
loans were permitted by the plan, (2) the bankruptcy court has
through its confirmation of the confirmed plan prescribed rules
under which Aspects will repay the loans, (3) the Department of
Labor has reviewed the loans and approved them, and (4) the loans
were made in the best interest of the plan and its participants.
Petitioner also asserts in this regard that the period of
limitation has expired on the assessment of all of the excise
taxes respondent determined as to the three loans. Petitioner
does not challenge respondent’s calculation of the excise taxes
shown in the notice of deficiency, including respondent’s use of
the 10-percent rate.
We agree with respondent that petitioner is liable for the
excise taxes as determined. Section 4975 was added to the Code
in 1974 by the Employee Retirement Income Security Act of 1974
(ERISA), Pub. L. 93-406, sec. 2003(a), 88 Stat. 971. Congress
enacted section 4975 to effect its intent to tax disqualified
1
(...continued)
4975(f)(1).
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persons who engage in self-dealing rather than penalize innocent
employees, who were previously faced with plan disqualification
on account of a prohibited transaction. S. Rept. 93-383, at
94-95 (1973), 1974-3 C.B. (Supp.) 80, 173-174. Disqualification
penalized employee/plan participants in that they were denied
favorable tax consequences such as deferral of taxation. Id. at
94, 1974-3 C.B. (Supp.) at 173. The goal of Congress in enacting
section 4975 “was to bar categorically a transaction that was
likely to injure the pension plan.” Commissioner v. Keystone
Consol. Indus., Inc., 508 U.S. 152, 160 (1993) (citing S. Rept.
93-383, supra at 95-96, 1974-3 C.B. (Supp.) at 174-175).
Section 4975 imposes two tiers of excise taxes on a
prohibited transaction. The first-tier tax, the rate of which
depends on the date on which a prohibited transaction occurs, is
imposed on the “amount involved” in a prohibited transaction for
each year, or part thereof, in the taxable period. Sec. 4975(a).
For prohibited transactions occurring before August 21, 1996, the
rate of the first-tier tax is 5 percent. See sec. 4975(a) before
amendment by the Small Business Job Protection Act of 1996
(SBJPA), Pub. L. 104-188, sec. 1453, 110 Stat. 1817. For
prohibited transactions occurring after August 20, 1996, and
before August 6, 1997, the rate of the first-tier tax is 10
percent. See sec. 4975(a) after amendment by SBJPA sec. 1453
(first-tier tax rate increased from 5 percent to 10 percent).
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For prohibited transactions occurring after August 5, 1997, the
rate of the first-tier tax is 15 percent. See sec. 4975(a) after
amendment by the Taxpayer Relief Act of 1997, Pub. L. 105-34,
sec. 1074, 111 Stat. 949 (first-tier tax rate increased from 10
percent to 15 percent). The second-tier excise tax, equal to 100
percent of the “amount involved”, is imposed when a transaction
to which the first-tier tax applies is not corrected within the
taxable period. See sec. 4975(b). In this context, the taxable
period begins with the date on which the prohibited transaction
occurs and ends on the earliest of (A) the date of mailing of a
notice of deficiency with respect thereto, (B) the date on which
the tax imposed by section 4975(a) is assessed, or (C) the date
on which correction of the prohibited transaction is completed.2
Sec. 4975(f)(2). A correction of a prohibited transaction may be
accomplished by “undoing the transaction to the extent possible,
but in any case, placing the plan in a financial position not
worse than that in which it would be if the disqualified person
were acting under the highest fiduciary standards.” Sec.
4975(f)(5).
As to the first-tier tax, each of the three loans falls
within the wide span of section 4975(a). Each of these loans is
2
Here, the earliest of these three dates is Nov. 7, 2001;
i.e., the date of which the notice of deficiency was mailed to
petitioner. The taxable period, therefore, ends on that date
absent an earlier correction of a prohibited transaction.
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a “prohibited transaction” under section 4975(c)(1)(B), (D), and
(E), and none of these loans is exempted from that definition by
section 4975(d). Under section 4975(c)(1)(B), the plan’s lending
of money to petitioner or to Inland was a “direct or indirect * *
* lending of money * * * between a plan and a disqualified
person”. Under section 4975(c)(1)(D), each of the three loans
also was a “direct or indirect * * * transfer to, or use by or
for the benefit of, a disqualified person of the income or assets
of a plan”.3 See O’Malley v. Commissioner, 96 T.C. 644, 651-652
(1991), affd. 972 F.2d 150 (7th Cir. 1992). Under section
4975(c)(1)(E), each of the three loans also was a direct or
indirect “act by a disqualified person who is a fiduciary whereby
he deals with the income or assets of a plan in his own interest
or for his own account”. Cf. Greenlee v. Commissioner, T.C.
Memo. 1996-378; Gilliam v. Edwards, 492 F. Supp. 1255, 1263
(D.N.J. 1980).
Petitioner aims to avoid an application of section 4975(a)
by advancing his five assertions set forth above. Petitioner’s
reliance on these assertions is misplaced. First, petitioner
asserts incorrectly that because each of the three loans was
3
Specifically, the three loans benefited petitioner in that
he used the first loan to pay the payroll of his wholly owned
corporation Aspects, he caused the second loan to pay his
personal car payment, and he caused the third loan to pay the
mortgage and payroll taxes on the building owned by a second
wholly owned corporation, Inland.
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permitted by the plan, none was a prohibited transaction. The
first loan was not permitted by the plan. In that it has yet to
be repaid more than 14 years after its making, the first loan
failed the plan’s explicit requirement that participant loans
“provide for level amortization with payments to be made not less
frequently than quarterly over a period not to exceed five (5)
years.” The second and third loans, both of which are different
from the first loan in that they are not participant loans, were
specifically prohibited by the statute upon their making. In
other words, even if the plan did allow the second and third
loans to Inland, we read nothing in section 4975 that would
exempt these loans from that section’s definition of a prohibited
transaction.
As to petitioner’s second assertion, the mere fact that the
bankruptcy court confirmed a plan under which Aspects may repay
each of the three loans is of no consequence to our decision. In
addition to the fact that Aspects has not yet made any payment on
those loans, we read nothing in the confirmed plan, nor has
petitioner pointed us to anything, that persuades us that Aspects
will eventually repay any or all amounts due on the three loans.
In fact, as we read the confirmed plan, the plan’s status is
simply that of an unsecured creditor with rights no greater than
those of any other unsecured creditor. Such an unfulfilled
third-party obligation does not transmute the prohibited
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transaction loans into acceptable loans, does not correct the
prohibited transactions, and does not eliminate petitioner’s
liabilities for the excise taxes respondent determined as to the
three loans. See Medina v. Commissioner, 112 T.C. 51, 55-56
(1999).
As to petitioner’s third assertion, we find no evidence in
the record that establishes, as petitioner asks us to find, that
the Department of Labor has reviewed and approved each of the
three loans. Although petitioner in his brief asks the Court to
rely upon a certain letter from the Department of Labor, that
letter was not admitted into evidence and, hence, is not
evidence. See Rule 143(b).
As to petitioner’s fourth assertion, petitioner relies
mistakenly on his claim that the three loans were in the best
interest of the plan and its participants. From a factual point
of view, we are unable to find in the record that the loans were
in the best interest of the plan and its participants. From a
legal point of view, even if we could make such a finding, our
conclusion would be the same: that the loans are prohibited
transactions. As we noted in Rutland v. Commissioner, 89 T.C.
1137, 1146 (1987):
The language and legislative history of ERISA indicate
a congressional intention to create, in section
4975(c)(1), a blanket prohibition against certain
transactions, regardless of whether the transaction was
entered into prudently or in good faith or whether the
plan benefitted as a result. “Good intentions and a
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pure heart are no defense” to liability under section
4975(a). Leib v. Commissioner, 88 T.C. 1474, 1481
(1987).
As to petitioner’s final assertion, petitioner is mistaken
in his belief that the period of limitation has expired on an
assessment of the excise taxes at issue. Although an assessment
of excise taxes of that type must generally be made within 3
years of the date that the relevant return is filed, and more
than 3 years have passed from the due date of most of the
relevant returns which were required to be filed for the subject
years, an exception applies where, as here, a return is never
filed. Sec. 6501(a), (c). In a case such as this, the
Commissioner may assess an excise tax at any time. See sec.
6501(c)(3); see also secs. 301.6501(e)-1(c)(4), 301.6501(n)-1,
Proced. & Admin. Regs.
We conclude that petitioner is a disqualified person who
participated in three prohibited transactions by way of the three
loans. We also conclude that he did so other than as a fiduciary
acting only as such. A disqualified person such as petitioner
participates in a prohibited transaction under section 4975 by
approving the transaction or by receiving its benefit. O’Malley
v. Commissioner, 96 T.C. 644 (1991). Petitioner’s participation
in the three loans other than as a fiduciary is seen from the
fact that he approved them for the purpose of receiving their
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benefit personally and that he did not take collection action
when payment on the loans was overdue.
We sustain respondent’s determination under section 4975(a)
and turn to his determination under section 4975(b). Petitioner
sets forth in his brief no specific objection to the latter
determination. Respondent asserts as to this matter that
petitioner has never corrected any of the three loans and that
plan beneficiaries risk losing plan benefits as a result of those
loans. Respondent concludes that petitioner also is liable for
the second-tier excise tax. We agree.
Section 141.4975-13, Temporary Excise Tax Regs., 41 Fed.
Reg. 32890 (Aug. 5, 1976) and 51 Fed. Reg. 16305 (May 2, 1986),
provides that, absent permanent regulations for section
4975(f)(4) and (5), section 53.4941(e)-1, Foundation Excise Tax
Regs., shall be relied upon to interpret terms contained in
section 4975(f). Section 53.4941(e)-1(c)(4)(i), Foundation
Excise Tax Regs., provides:
In the case of the use by a disqualified person of
property owned by a private foundation, undoing the
transaction includes, but is not limited to,
terminating the use of such property. In addition to
termination, the disqualified person must pay the
foundation–
(a) The excess (if any) of the fair market
value of the use of the property over the
amount paid by the disqualified person for
such use until such termination, and
(b) The excess (if any) of the amount which
would have been paid by the disqualified
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person for the use of the property on or
after the date of such termination, for the
period such disqualified person would have
used the property (without regard to any
further extensions or renewals of such
period) if such termination had not occurred,
over the fair market value of such use for
such period.
In applying (a) of this subdivision the fair market
value of the use of property shall be the higher of the
rate (that is, fair rental value per period in the case
of use of property other than money or fair interest
rate in the case of use of money) at the time of the
act of self-dealing (within the meaning of paragraph
(e)(1) of this section) or such rate at the time of
correction of such act of self-dealing. In applying
(b) of this subdivision the fair market value of the
use of property shall be the rate at the time of
correction.
Pursuant to these regulations, where as here a prohibited
transaction is the lending of money, correction of the prohibited
transaction requires termination of the loan by its repayment
plus reasonable interest. Sec. 53.4941(e)-1(c)(4), Foundation
Excise Tax Regs.; see also Medina v. Commissioner, supra at 55;
Kadivar v. Commissioner, T.C. Memo. 1989-404. Given that none of
the three loans has been repaid, we conclude that petitioner did
not correct any of the prohibited transactions by November 7,
2001, the end of the applicable taxable period, and that the plan
was not “in a financial position not worse than that in which it
would be if the disqualified person were acting under the highest
fiduciary standards”. See sec. 4975(f)(5). We sustain
respondent’s determination that petitioner is liable for the
second-tier excise tax under section 4975(b). We note, however,
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that sections 4961(a) and 4963(e)(1) generally allow for the
abatement of a second-tier excise tax if the prohibited
transaction giving rise thereto is corrected within 90 days after
our decision sustaining the tax becomes final. Because the issue
of whether petitioner will or would qualify for an abatement is
not yet ripe for decision, we express no opinion on this issue at
this time.
We turn to the additions to tax respondent determined under
section 6651(a)(1). Respondent determined that petitioner is
liable for these additions to tax because he did not file an
excise tax return for 1996, 1997, 1998, 1999, or 2000.
Petitioner argues that these additions to tax do not apply
because the plan did not have the money to pay its plan
administrator to prepare those returns. We agree with
respondent.
A disqualified person who engages in a prohibited
transaction is required to file an excise tax return for each
taxable year in the taxable period. Secs. 4975(f)(2), 6011; sec.
54.6011-1(b), Pension Excise Tax Regs.; see also Janpol v.
Commissioner, 102 T.C. 499, 500 (1994). Such a person who fails
to do so timely is generally liable under section 6651(a)(1) for
a monthly addition to tax equal to 5 percent of the amount of tax
that should have been shown on the return, up to a maximum charge
of 25 percent. See Janpol v. Commissioner, supra at 500. This
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addition to tax does not apply where the failure to file was due
to reasonable cause and was not due to willful neglect. United
States v. Boyle, 469 U.S. 241, 245 (1985); Janpol v.
Commissioner, supra at 504. Reasonable cause is present where
the person exercised ordinary business care and prudence but was
unable to file the return within the prescribed time. United
States v. Boyle, supra at 245; sec. 301.6651-1(c)(1), Proced.
& Admin. Regs. Willful neglect means a conscious, intentional
failure or reckless indifference. United States v. Boyle, supra
at 245.
Because petitioner was a disqualified person who engaged in
prohibited transactions, and the transactions remained
uncorrected upon issuance of the notice of deficiency, he was
required to file an excise tax return for each year in issue.
Petitioner did not file an excise tax return for any of these
years. Nor has he established to our satisfaction that he had
reasonable cause not to file those returns. Cf. United States v.
Boyle, supra at 249 (taxpayers have a personal and nondelegable
duty to file a timely return; reliance on an accountant to file a
return does not provide reasonable cause for an untimely filing).
We hold that petitioner is liable for the section 6651(a)(1)
additions to tax respondent determined.
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We have considered all arguments in this case and, to the
extent not discussed above, find those arguments to be without
merit or irrelevant. To reflect the foregoing,
Decision will be entered
under Rule 155.