dissenting: I generally share the view of my colleagues that we should not disregard the terms in which the parties have chosen to present their case, and that taxpayers should usually be held to the form of the transaction they have chosen. However, the unsatisfactory result of the majority decision impels me to look for an alternative characterization of the transaction by which confiscatory liabilities for section 4975 excise taxes may be avoided.1
I would reopen the record to receive evidence on the qualification of the trust from its inception. I would also consolidate this case for consideration on an expedited basis with docket No. 22586-90, concerning the qualification of the trust for its fiscal years ended April 30, 1984, 1985, and 1986, discussed below in greater detail {infra pp. 424-425) to assure that the Court will be able to enter consistent decisions.2
The remainder of this opinion summarizes facts in the record that bear on the qualification of the trust, discusses procedural and substantive tax law issues that must be dealt with under this alternative approach, and sketches the lines of further inquiry. To the extent statements of fact in this opinion are not supported by the record, they should be treated as hypotheses to guide the inquiry in the supplemental evidentiary hearing and legal argument that should be ordered.
Preliminary Inquiry: Can We Disregard Respondent’s Determination ?
As a preliminary matter, we would be required to decide whether respondent’s determination letter of February 18, 1982,3 to the effect that the trust at its inception was qualified under section 401(a) and exempt from tax under section 501(a), prevents us from concluding that petitioners, who clearly engaged in a prohibited transaction with the trust if it was so qualified and exempt, are nevertheless not subject to the section 4975 excise taxes on prohibited transactions. To arrive at the answer would require a two-step inquiry: (1) Whether respondent would be entitled to retroactively revoke his determination; and (2) if this question is yes, whether respondent’s decision not to revoke the determination, and instead pursue petitioners for the prohibited transaction excise tax liabilities, could be disregarded by this Court as a step in finding that petitioners are not liable for the excise taxes.
(1) In order for a ruling or determination to be immune from retroactive revocation, all the following conditions must have been satisfied: (a) There has been no misstatement or omission of material facts; (b) the facts subsequently developed are not materially different from the facts upon which the ruling was based; (c) there has been no change in the applicable law; (d) the ruling was originally issued with respect to a prospective or proposed transaction; and (e) the taxpayer acted in good faith in reliance upon such ruling and a retroactive revocation would be to his detriment.4
A number of these conditions have not been satisfied. The fact that the farmland and oil royalty interests had been transferred to the trust does not appear to have been disclosed in the determination request; this was the omission of a material fact. The determination was not issued with respect to a prospective or proposed transaction; the trust had been formed and the property transferred to it 2 months before petitioners and the trust requested the determination, and more than 8 months before respondent issued the determination letter. Therefore, petitioners and the trust could not have relied to their detriment on respondent’s determination that the trust was a qualified trust. Accordingly, respondent would be free retroactively to revoke his determination letter that the trust under the plan was a qualified trust exempt from Federal income tax.5
(2) Section 4975(e)(1) defines the term “plan” subject to the prohibited transactions taxes as—
a trust described in section 401(a) which forms part of a plan * * * which trust or plan is exempt from tax under section 501(a), an individual retirement account described in section 408(a) or an individual retirement annuity described in section 408(b) * * * (or a trust, plan, account, or annuity * * * , which, at any time, has been determined by the Secretary to be such a trust, plan, account * * * )J6i
The parenthetical phrase is susceptible to more than one interpretation. We are concerned with the possibility that the mere fact that respondent has at any time issued a determination letter, without regard to its validity, means that the application of the prohibited transaction rules and excise taxes cannot be avoided under any circumstances.7 This interpretation might be supported by the following passage in the legislative history:
In addition, the tax law rules are to continue to apply even if the plan, etc., should later lose its tax qualification. [H. Rept. 93-1280 (1974), 1974-3 C.B. 468.]
A contrary interpretation would require that the Secretary have made a valid initial determination that the trust was qualified.
I believe the Court should be free to disregard respondent’s determination if the conditions under which it was issued would render it invalid and unenforceable. This would be particularly appropriate here, where the grantors and all the plan beneficiaries are members of the same family within the meaning of section 4975(e)(2)(F),8 there are no nonrelated parties in interest, and the omitted facts, if initially disclosed, would have caused respondent to deny the original request for a determination that the trust was qualified.
A case holding that a purported pension trust that had received respondent’s approval of its qualified status did not qualify as an exempt trust from its inception is Lansing v. Commissioner, T.C. Memo. 1976-313. There, a pension trust purportedly established by an S corporation was held to have lacked sufficient economic reality to be recognized as an entity for tax purposes, where the sole shareholder and Officers of the corporation, who were also the sole participants and trustees of the plan, freely and consistently dealt with the trust assets as their own. As a result, the Court denied the deductions claimed by the employer S corporation for contributions to the trust. In Lansing v. Commissioner, supra, the initial determination letter on the qualification and exemption of the trust, dated December 14, 1966, had been revoked retroactively by the Commissioner on March 29, 1972.9
If it should become clear to the Court, after an additional evidentiary hearing, that there are grounds for retroactive revocation of the determination that the trust was qualified at its inception, would the Court be free to disregard that determination if respondent should choose not to revoke it?10 We must assume for this purpose that respondent will persist in asserting petitioners’ liabilities for the prohibited transaction excise taxes on the ground that respondent had originally determined, in response to the trust’s request, that the trust was an exempt trust.
On the record before us, and lacking any legal argument on the point by the parties, it may be unclear that we can disregard the determination letter and go our own route. Some possible approaches are set forth below.
We might find, as the facts and law are further developed, that contract law is properly applicable in determining the validity and effect of rulings and determination letters. If the trust failed to implement the transaction properly, as represented, or if material facts were omitted, there would not be a valid contract. Restatement, Contracts 2d, secs. 163-164 (1979). If so, would the determination be void or voidable, and would it matter?
We might alternatively treat the determination letter merely as an administrative interpretation of the statute as applied to the facts specified in the taxpayer’s letter. The findings of fact would be subject to “arbitrary and capricious” and “abuse of discretion” standards. 5 U.S.C. sec. 706(2)(A) (1988). Inasmuch as the actual facts seem to resemble only vaguely the facts upon which the determination was granted, the determination may well have been “arbitrary and capricious” and, under this theory, would have no legal effect. If so, it would be an “abuse of discretion” for respondent to continue to rely on an invalid determination as the ground for imposing excise tax liability.
Or it might be more in keeping with the facts to analogize the determination letter to a criminal plea agreement. In both cases, the parties in the case have made a deal, and they are required to honor it. But the judge in a criminal case is not a party to the agreement and is not required to abide by it. See Fed. R. Crim. P. 11(e)(4). Indeed, the judge’s role as protector of the public interest in the efficient and equitable administration of justice sometimes requires the judge to act independently of the parties’ wishes.
In any event, in order to proceed with the inquiry, we must be able to find that the trust was unqualified at its inception so as to render respondent’s determination invalid for excise tax purposes. To that issue I now turn.
1. ESOP Status Under Section 409(a)
The facts disclosed by the majority and dissenting opinions show that the so-called Zabolotny Farms, Inc. employee stock ownership plan (the plan), despite respondent’s determination letter, never qualified as an employee stock ownership plan within the meaning of section 409(a).11
Section 409(a) defines a “tax credit employee stock ownership plan” as a defined contribution plan which—
(1) meets the requirements of section 401(a),
(2) is designed to invest primarily in employer securities, and
(3) meets the requirements of subsections * * * of this section.
The focus of this first inquiry is on paragraph (2), and the answer is not far to seek; the trust under the plan from inception was not “designed to invest primarily in employer securities.” The trust was and is invested primarily in mineral royalty interests that fund the joint life annuity retained by petitioners, with remainder to the children. Cf. Krabbenhoft v. Commissioner, 94 T.C. 887 (1990) (Court reviewed), affd. 939 F.2d 529 (8th Cir. 1991); Lazarus v. Commissioner, 58 T.C. 854 (1972), affd. 513 F.2d 824 (9th Cir. 1975). Whatever beneficial interests in the stock of Farms, Inc., have vested in the children have not been derived by them as corporate employees accruing service credits under the plan, but as the natural objects of their parents’ bounty.
The record discloses that the following events occurred simultaneously, as of May 20, 1981:
(1) Petitioners organized Farms, Inc., ostensibly to conduct the farm operation, and received 1,340 shares of its capital stock;
(2) Farms, Inc. adopted the plan, with petitioner Anton Zabolotny as trustee;
(3) petitioners transferred to the trust under the plan the farmland and mineral rights (burdened and benefited by the royalty agreements with Gulf Oil Corp.) in exchange for their right under an unsecured private annuity contract to receive joint and survivor annuity payments of $478,615 per year from the trust;12 and
(4) the trust under the plan leased the farmland to Farms, Inc., at an annual rental of $18,075 for 2 years (renewed at $22,095 per year for the next 5 years).
By transferring the mineral royalties and farmland to a purportedly exempt trust on these terms, petitioners appear to have sought to achieve the following income, gift, and estate tax objectives: to avoid current recognition of gain to themselves on the transfer of assets to the trust; to avoid any income taxes on the trust income in excess of the current distributions being used to pay the joint and survivor annuity; by transferring the assets to an exempt trust instead of the corporation, to avoid corporation income taxes on the mineral royalty income (S corporations have been subject to various restrictions on their ability to remain qualified as such if they receive passive royalty income, sec. 1362(d)(3); and to use the facade of an ESOP to pass the remainder interests in the mineral royalties and farmland to the children free of gift and estate taxes.
These objectives appear to overshadow completely any intention to use corporate tax deductions for contributions to an ESOP to facilitate the transfer of corporate stock to the children in their capacities as employees of the corporation.
When they transferred the farmland and mineral rights to the trust, petitioners were the only beneficiaries of the trust (and the only employees of the corporation) and remained so until April 30, 1983. On that date, petitioners terminated their employment with Farms, Inc., and forfeited their entire interest in the plan; of course, they retained their joint life estates in the right to receive annuity payments. During the 5-year period ended April 30, 1986, the trust acquired 17,877 shares of the capital stock of Farms, Inc., 106 shares by contribution from Farms, Inc., and 17,771 by purchase. As a result, petitioners’ percentage of stock ownership in Farms, Inc., was reduced during this period from 100 percent to 6.97 percent, even though the number of shares held by petitioners — 1,340—remained constant. In the meantime, petitioners’ children had become the sole employees of the corporation and beneficiaries of the trust under the plan.
As of May 20, 1981, at the inception of these arrangements, the value of the mineral rights was 17 times greater than the value of the farmland:
Farmland Mineral rights
$361,500. $6,120,415
(5.58%). 13(94.42%)
The farming operation, as carried on by Farms, Inc., appears to have been a losing proposition.14 The Federal corporate income tax return of Farms, Inc., for the taxable year 1984 shows:
Taxable loss from operations.($197,204)
Net operating loss deduction. (382,191)
Total loss. (579,395)
For the 5-year period ended April 30, 1986, contributions from Farms, Inc., to the trust under the plan amounted to only $12,900,15 while the gross royalty income of more than $9 million during this period satisfied the current annuity obligations to petitioners, provided the wherewithal for the trust to purchase the bulk of the capital stock of Farms, Inc., and built up the net liquid asset value of the trust to $5,287,349.27. Clearly, therefore, the overwhelming bulk of the benefits accruing to the children, the current employees of Farms, Inc.,16 has been derived from the residual value of the royalty payments under the mineral lease, after satisfying the trust’s annuity obligation to the grantors, and not from contributions funded by net income or assets generated by the farming operations of the corporation.
The stated purpose of Congress in encouraging the use of ESOPs was to strengthen the free enterprise system by providing, through corporate income tax deductions, for the accelerated generation of corporate funds to facilitate financing the transfer of stock ownership to corporate employees. See S. Rept. 97-144, at 119-123 (1981); S. Rept. 94-36, at 55-60 (1975); 97 Cong. Rec. 17290-17294 (1981) (Statement of Senator Long). This was to be accomplished by allowing corporate income tax deductions for cash contributions to the ESOP to enable the trust to purchase employer stock (or repay the third-party loan to the ESOP that had been used to finance the purchase of employer stock), which was to be distributed or made available to corporate employees under the terms of the ESOP.
These purposes have not been served by the arrangement disclosed by the record. The stock interests transferred for the benefit of the children, which have been made possible through waivers by petitioners of their preemptive rights, and may well have been taxable gifts, are being used as markers to measure the children’s rights in the residual values and assets attributable to the mineral royalties. Over the initial 5 years of the trust’s existence, contributions by Farms, Inc., to the ESOP have been so insignificant, in comparison with the amount of the trust assets invested in mineral rights and farmland, and the amounts of stock purchased outright by the trust, that the amounts of Farms, Inc., stock acquired with those contributions should be disregarded.
Under the Treasury and Labor Department regulations, a plan constitutes an ESOP only if the plan document specifically states that the plan is “designed to invest primarily in qualifying employer securities.” Sec. 54.4975-ll(b), Foundation Excise Tax Regs.; 29 C.F.R. sec. 2550.407d-6(b) (1980). These regulations go on to state that an ESOP “may invest part of its assets in other than qualifying employer securities.”17
It is obvious that the plan has never satisfied this standard.18 Consistent with the Supreme Court’s view in Malat v. Riddell, 383 U.S. 569, 572 (1966), I believe that a literal interpretation of the word “primarily” would promote the legislative purpose as gleaned from the legislative history paraphrased above. Accordingly, as used in section 409(a)(2), “primarily” means “of first importance” or “principally.” Where, as here, there are only two elements to be considered (employer securities and all other investments), “primarily” must mean a majority. As a correlative proposition, the term “part,” as used in the regulations, must mean a portion that is less than 50 percent of the whole and of subordinate importance in the overall scheme for the investment of the assets of the trust under the plan.
The plan does not and cannot satisfy this standard. At all times the value of the plan assets has been primarily attributable to the mineral rights (in which Farms, Inc., has no interest whatsoever). The values of the farmland leased by the trust to Farms, Inc., and of the stock of Farms, Inc. (primarily acquired by purchase rather than through corporate contributions), are relatively insignificant.
On more than one occasion and in a variety of circumstances, the courts have held that a transaction did not satisfy a definitional requirement of the tax statute, so that it did not qualify for beneficial tax treatment. The judicial glosses on the statutory reorganization definition, reading in the requirements of “business purpose,” Gregory v. Helvering, 293 U.S. 465 (1935), and “continuity of interest,” Pinellas Ice & Cold Storage Co. v. Commissioner, 287 U.S. 462 (1933), readily come to mind. See also Bob Jones University v. United States, 461 U.S. 574 (1983).
We need not reach so far as the Supreme Court was required to do in order to arrive at the desired results in those cases. In the case at hand, section 409(a)(2) explicitly provides the applicable standard, “designed to invest primarily in employer securities.” At its inception, the trust is found wanting as an ESOP.
2. Qualification of the Trust for Tax-exemption Under Sections 401(a) and 501(a)
If the plan is not qualified as an ESOP under section 409(a)(2), further inquiry is required to determine whether the trust obtained qualified status and exemption from Federal income tax under the “exclusive benefit” standard of section 401(a). Section 401(a) requires that the trust form part of a “plan of an employer for the exclusive benefit of his employees or their beneficiaries” in order to “constitute a qualified trust” entitled to exemption from income tax under section 501(a). In addition, inasmuch as the plan purported to create an ESOP that satisfied the requirements of section 409(a)(1), the inquiry should also focus on whether the plan was a “defined contribution plan,” which section 4975(e)(7) requires to be either “a stock bonus plan which is qualified, or a stock bonus and money purchase pension plan, both of which are qualified under section 401(a).”
It is well settled that sole proprietors or partners are not eligible to participate in a qualified plan designed only to cover common law corporate employees. See Bentley v. Commissioner, 14 T.C. 228 (1950), affd. per curiam 184 F.2d 668 (2d Cir. 1950). It does not appear that the plan’s adoption of the joint and survivor annuity arrangement under a private annuity contract was for the benefit of petitioners in their capacities as corporate employees. They became entitled to those benefits solely by reason of their asset transfer as grantors of the trust, with retained life estates. Petitioners’ decision to terminate their employee status and forfeit their interests under the plan also indicate that the exclusive benefit standard has not been served. Whatever benefits have accrued to the children, whose status as bona fide corporate employees may also be questionable,19 were derived primarily from the assets transferred to the trust by petitioners, rather than from contributions to the trust by Farms, Inc., under the stock bonus or money purchase provisions of the plan. The absence of corporate taxable income and paucity of corporate contributions indicates there never was any intention or ability by Farms, Inc., to fund a money purchase plan or stock bonus plan of any consequence.
In these circumstances, it would be more in keeping with reality to treat the trust as a private family trust, and to let the income, gift, and estate tax consequences flow from that characterization.
Respondent’s Inconsistent Positions
Finally, there is another reason why it would be improvident at this time to uphold respondent’s statutory notices, particularly the portions determining petitioners’ deficiencies in first-tier excise taxes for the taxable years 1984, 1985, and 1986. On July 30, 1990, respondent sent a statutory notice to the trust under the plan, determining that the trust is taxable under section 641 on its royalty and other income for its fiscal years ended April 30, 1984, 1985, and 1986. The trust’s income tax deficiencies determined by respondent for these years are substantial:
Taxable year Deficiency
Apr. 30, 1984 . $668,375
Apr. 30, 1985 . 592,196
Apr. 30, 1986 . 762,019
The trust has filed a petition with the Court (docket No. 22586-90), to which respondent has filed an answer, but there have been no further proceedings in that case. We do not know at this time the grounds for this determination, nor what administrative action, if any, respondent intends or intended to take for the earlier years.
For purposes of the further inquiry recommended herein, the cases should be consolidated and docket No. 22586-90 considered on an expedited basis. Although respondent may argue that he is entitled to determine liabilities for petitioners’ excise taxes and the trust’s income taxes for the same periods (see Tech. Adv. Mem. 794001 (May 22, 1979)), I believe respondent’s two positions are mutually inconsistent if the trust has been unqualified as an exempt trust from its inception.
Conclusion
It appears that petitioners fell in among tax advisers who whetted their appetites to exploit the bonanza under their farm by retaining a comfortable life income for themselves and transferring the valuable remainder interest to their children free of income, gift, and estate taxes. The arrangement the advisers created for petitioners is so foreign to the world of ESOPs and qualified pension and profit-sharing plans that the Zabolotny family should not be subjected to the prohibited transaction excise tax regime, which was designed to protect the interests of legitimate corporate employees.
I believe that additional evidence can be developed to support this conclusion, but I would abide the outcome of a supplemental hearing.
PARR,«/., agrees with this dissenting opinion.I assume that the majority opinion and Judge Ruwe’s dissent have concluded, in line with sec. 4975(f)(1), that the liability for the 5-percent, first-tier tax and the 100-percent, second-tier tax is a joint and several liability with respect to the transaction. On this assumption, petitioners’ total liability for the first- and second-tier taxes amounts to $8,426,489.50, rather than $16,852,979, but the amount of the aggregate liability should be clarified on the Rule 155 computation. Whatever the amount of tax, petitioners’ total liability, with interest, must be at least double that amount. I also have substantial doubt that there is a practicable way, at this late date, that the prohibited transaction could be corrected by a sale back to petitioners so as to cancel the second-tier tax liability.
Under sec. 6501(g)(2), if a taxpayer files an exempt organization return and is later held to be taxable, the period of limitations on assessment of income taxes runs from the time the erroneous return is filed, provided the return is filed in good faith. Inasmuch as respondent does not appear to have determined that the trust had taxable income in the fiscal years ended Apr. 30, 1982 and 1983, it would appear that respondent has not attempted to revoke his determination that the trust was exempt from income tax for those years, and that the periods of limitation on assessment of the income tax liabilities of the trust for those years have expired. On the other hand, docket No. 22586-90 indicates that respondent has revoked the trust’s exemption for its fiscal years ended Apr. 30, 1984, 1985, and 1986 and determined that the trust is liable for income taxes under sec. 641 for those years.
Apparently, the parties’ stipulations and the present record do not include a copy of respondent’s original determination letter.
Rev. Proc. 80-20, sec. 1Y.05, 1980-1 C.B. 633, 644 superseded by Rev. Proc. 82-37, 1982-1 C.B. 491. The current version is Rev. Proc. 91-1, sec. 11.05, 1991-1 C.B. 321. With respect to determination letters on qualified plans, Rev. Proc. 80-24, sec. 13.05, 1980-1 C.B. 658, 665-666, incorporating the standards described in the text, appears to have been in effect at the time the determination letter in issue was requested. The current version is Rev. Proc. 90-4, sec. 15.05, 1990-1 C.B. 410, 420.
It is well established that when an entity operates contrary to the method of operation described in its request for determination, the Service may retroactively revoke the ruling. See, e.g., Huff-Cook Mutual Burial Association, Inc. v. United States, 327 F. Supp. 1209, 1213-1214 (W.D. Va. 1971) (upholding retroactive revocation of exemption determination under sec. 501 (e)(12) because taxpayer operated “in direct contradiction to the method of operation” outlined in its request for determination, beginning almost immediately after it filed the request).
Sec. 4975(e)(1) is in contrast to the private foundation provision, sec. 509(b), which in effect allows a private foundation to escape the coverage of the private foundation prohibited transaction rules if “its status as such is terminated under section 507.”
That this would probably be respondent’s position is indicated by G.C.M. 39297 (June 28, 1984).
Sec. 4795(e)(6) provides: “For purposes of paragraph (2)(F), the family of any individual shall include his spouse, ancestor, lineal descendant, and any spouse of a lineal descendant.”
The Court in Lansing made the following comments on the significance of the determination letter on the prohibited transaction issue:
Respondent does not contend that if a trus.t existed, the transactions here in issue constituted prohibited transactions under section 503. Section 503(b) does not include trust beneficiaries within the class of persons and organizations with whom the specific transactions are prohibited. Moreover, the statute provides that if a qualified trust has engaged in prohibited transactions, it will be denied exemption but only for years subsequent to the year in which it is notified of the prohibited transactions. Section 503(a)(2).
[Lansing v. Commissioner, T.C. Memo. 1976-313, 35 T.C.M. 1421, 1424 n.9, 45 P-H Memo T.C. par. 76,313 at 1400 n.9.]
For an exhaustive history and analysis of respondent’s exercise of discretion to revoke private rulings retroactively in the employee plans area, see Slate, “The I.R.S.’ Use of Section 7805(b) in the Employee Plan Area: An Analysis,” Special Report, Tax Mgmt. (Feb. 13, 1989).
In 1981, at the time of the trust’s creation, the applicable provision of the Internal Revenue Code of 1954 was designated sec. 409A. Former sec. 409A was redesignated sec. 409 by sec. 491(e)(1) of the Deficit Reduction Act of 1984, Pub. L. 98-369, 98 Stat. 852.
Using a 10*percent discount rate, the expected return multiples for joint and survivor annuities from sec. 1.72-9, Income Tax Regs, (table II, male age 61, female age 51 or 46), for an annuity of $478,615 per year, the present value of the annuity in 1981 was $4,539,163 or $4,609,221. If the 6-percent discount rate in sec. 20.2031-10, Estate Tax Regs., is used, the present value of the annuity was $6,674,282 or $6,914,604.
The total stipulated value of the real property — $6,481,915—seems to be on the low side. During the initial 5-year period, the trust under the plan received over $9 million of royalty income, was able to satisfy the current annuity obligations, pay $653,000 for stock of Farms, Inc., and accumulate $5,287,349.27 of liquid assets. The current fair market value of the royalty interests would depend on an estimate of the amount of the remaining reserves and current and projected oil prices.
It is unclear whether this is because the farm lease from the trust under the plan to Farms, Inc., is unduly burdensome to Farms, Inc., or whether the farm operation would not produce net income under any circumstances. Portions of Billings, McKenzie, and Dunn Counties in North Dakota appear to be included in an area in which annual predictable rainfall may be insufficient to support commercial ranching and farming operations. See Matthews, “The Poppers and the Plains,” N.Y. Times Sunday Magazine 24 (June 24, 1990).
The trust’s basis in the 106 contributed shares is said by Joint Exhibit 144-EN to be $5,250. I have not found an explanation for the $7,650 difference between this amount and the total $12,900 of contributions.
There may also be grounds for concluding that the benefits accruing under the plan to the children do not satisfy the “exclusive benefit” standard. See infra pp. 424-425. Two of the daughters appear to reside well beyond reasonable commuting distance from the farm, raising the question whether they are bona fide corporate employees. There is no evidence in the record as to the nature and extent of the services rendered to the corporation by any of the children; these matters should be clarified in the supplemental hearing.
Although the phrase “designed to invest primarily” has not been interpreted by respondent or the courts, it necessarily implies that a trust, in order to qualify as an ESOP, must hold the major portion of its assets in employer securities. See Kaplan, Curtis, and Brown, 354-5th Tax Mgmt., ESOPs A-3. Department of Labor Advisory Opinion No. 83-6 (Jan. 24, 1983) states that the statute does not establish a fixed quantitative standard for the-“primarily invested” requirement, but the opinion, which disclosed that a simple majority of the trust assets were invested in employer stock, indicates that holding a majority of the trust assets in employer securities would be necessary as well as sufficient to satisfy the “invested primarily” requirement.
The initial 1981 version of the plan document does not even appear to contain the required statement regarding the primary purpose of investing in employer securities. A second version of the plan, effective Jan. 1, 1984, states: “It is understood that the assets of the plan shall be invested primarily in Qualifying Employer securities.” This language was removed from a third version of the plan, effective May 20, 1986.
See supra note 16.