Wood v. Comm'r of Internal Revenue

• Decision Date: 27 September 1990
• Docket Number: Docket No. 322-89.
• Citation: 95 T.C. 364,12 Employee Benefits Cas. 2442,95 T.C. No. 26
• Parties: DALLAS C. WOOD, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
• Court: U.S. Tax Court

12 Employee Benefits Cas. 2442

95 T.C. 364

95 T.C. No. 26

DALLAS C. WOOD, Petitioner

v.COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 322-89.

United States Tax Court

Filed September 27, 1990.

Timothy M. Haake and Robert G. Nath, for the petitioner.

David Albert Mustone, for the respondent.

P contributed three third-party promissory notes to his defined benefit pension plan in order to meet P's funding obligation as calculated by his actuary. The provisions of the plan did not require cash contributions. HELD, Ps contribution of the third-party promissory notes to the plan was not a ‘sale or exchange‘ or a prohibited transaction within the meaning of sec. 4975(c), I.R.C., and is not subject to the excise tax imposed by sec. 4975(a) and (b).

COHEN, JUDGE:

Respondent determined that petitioner is liable for excise taxes under section 4975(a) in the amount of $3,000 for 1984, $5,700 for 1985, and $5,700 for 1986. Respondent also determined that petitioner is liable for additions to tax under section 6651(a)(1) for failure to file excise tax returns, but respondent has now conceded the additions to tax.

The issue for decision is whether contribution of property to a defined benefit pension plan in order to satisfy the employer's funding obligation is a prohibited transaction, i.e., a ‘sale or exchange,‘ within the meaning of section 4975(c)(1)(A).

Unless otherwise indicated, all section references are to the Internal Revenue Code, as amended and in effect for the years in issue.

FINDINGS OF FACT

The material facts have been stipulated, and the stipulated facts are incorporated in our findings by this reference. Petitioner resided in Alexandria, Virginia, when he filed his petition in this case. During the years in issue, petitioner was a self-employed real estate broker.

In 1983, petitioner sold his principal residence. The buyers of the residence executed a deed of trust note in favor of petitioner for $60,000.

During 1984, petitioner was the real estate broker for the sale of two residential properties. The purchase agreement for each property provided, in part, that the purchasers would execute second trust deed notes in favor of the sellers. Petitioner subsequently purchased these notes, paying $32,000 for a note with a face value of $39,000 and $11,250 for a note with a face value of $15,000.

On October 16, 1984, petitioner adopted the Dallas C. Wood Defined Benefit Plan (the Plan), effective January 1, 1984. Petitioner was the sole participant in the Plan and served as the Plan administrator and as the trustee.

The funding requirements of the Plan were set forth in Article XIII as follows:

13.01 Benefits provided by this Plan and Trust shall be funded in accordance with the provisions of the Employee Retirement Income Security Act of 1974. The determination of contributions, shall be calculated using an accepted actuarial method. The calculations shall be performed by the actuary selected and approved by the Employer. The actuarial method utilized in funding this Plan and Trust shall be as provided and defined under the Employee Retirement Income Security Act of 1974.

13.02 A funding standard account shall be maintained for this Plan and Trust. Each Plan Year the funding standard account shall be debited with the amount determined under Section 13.01 of this Plan and Trust and credited with the applicable contribution made for such Plan Year. The funding standard account will be credited or debited with such other amounts as may result from Plan and Trust changes, actuarial assumption changes, actuarial gains and losses, any approved deficiencies as provided under the Employee Retirement Income Security Act of 1974. If the debits under the funding standard account exceed the credits, a deficiency will exist. such deficiencies will be subject to the provisions of the Employee Retirement Income Security Act of 1974.

The Plan did not require that the Plan be funded in cash and specifically allowed investment of trust funds in noncash assets.

Petitioner relied on Sal Corrao of Certified Actuarial Services, Inc., to establish, fund, and operate the Plan. The aggregate level cost method was adopted as the valuation method used to calculate the cost of the Plan benefits. Applying that method, the actuary calculated a cost of $114,000 as the required contribution for the year ended December 31, 1984.

In order to fund the Plan, petitioner contributed the three third-party promissory notes previously acquired by him in the transactions described above. On his 1984 Federal income tax return, petitioner claimed a deduction of $114,000, the combined face amounts of the three notes, for a contribution to the Plan. The total fair market value of the three notes at the times that they were transferred to the Plan was $94,430.

The three promissory notes were payable by third-party obligors who were unrelated to petitioner and were not ‘disqualified persons‘ within the meaning of section 4975. The principal of each note was paid prior to the date on which the note was due.

OPINION

Section 4975(a) and (b) imposes two levels of excise tax on any ‘disqualified person‘ who participates in a ‘prohibited transaction.‘ There is no dispute in this case that petitioner is a disqualified person. See section 4975(e)(1) and (2). The parties disagree as to whether contributions of third-party promissory notes by petitioner to his Defined Benefit Pension Plan were prohibited transactions. The issue is not dependent on the nature of the promissory notes but may be generalized into the question of whether contribution by a disqualified person of property in satisfaction of the obligation to fund a defined benefit pension plan is a prohibited transaction.

Section 4975(c) defines prohibited transactions as follows:

(c) Prohibited Transaction. --

(1) General rule. -- For purposes of this section, the term ‘prohibited transaction‘ means any direct or indirect--

(A) sale or exchange, or leasing, of any property between a plan and a disqualified person;

(B) lending of money or other extension of credit between a plan and a disqualified person;

(C) furnishing of goods, services, or facilities between a plan and a disqualified person; (D) transfer to, or use by or for the benefit of, a disqualified person of the income or assets of a plan;

(E) 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; or

(F) receipt of any consideration for his own personal account by any disqualified person who is a fiduciary from any party dealing with the plan in connection with a transaction involving the income or assets of the plan.

Section 4975(f) sets forth other definitions and special rules including the following:

(3) Sale or exchange; encumbered property. -- A transfer of real or personal property by a disqualified person to a plan shall be treated as a sale or exchange if the property is subject to a mortgage or similar lien which the plan assumes or if it is subject to a mortgage or similar lien which a disqualified person placed on the property within the 10-year period ending on the date of the transfer.

Respondent contends that petitioner's contribution of the notes to the Plan should be treated as a sale or exchange consistent with other areas of the Internal Revenue Code in which transfer of property in satisfaction of a indebtedness, in this case the obligation to fund the Plan, is taxed as a sale or exchange. Respondent argues that transfer of property in satisfaction of an obligation to fund is distinguishable from a voluntary contribution. According to respondent, section 4975(f)(3), which appears to define sale or exchange in the context of prohibited transactions, is a special rule applicable to voluntary contributions.

Petitioner contends that the prohibited transaction provisions of section 4975 relate only to operations of a plan and that section 4975 has no application to contributions to a plan. Petitioner argues that other sections of the Code, imposing sanctions for failure to satisfy the minimum funding standards applicable to defined benefit plans, are intended to implement the standards applicable to contributions. Petitioner points out that there is no compelling reason why an employer cannot contribute property in satisfaction of a funding obligation. For the reasons and to the extent discussed below, we agree with petitioner.

In Colorado National Bank of Denver v. Commissioner, 30 T.C. 933 (1958), we specifically held that a transfer of land to a pension trust was payment to the trust within the meaning of section 404(a)(1)(C). We stated that ‘There is no reason why a contribution to a pension trust could not be made in property and still be deductible.‘ 30 T.C. at 935. Respondent has not disputed this statement or argued that any legislation subsequent to our decision in Colorado National Bank of Denver changes that rule. Respondent has ignored that case, acknowledging, however, that ‘there is nothing in the Code which precludes the deduction of a contribution in-kind (to the extent allowable under I.R.C. sec. 404) even though it may constitute a nonexempt prohibited transaction under sec. 4975.‘ A different rule applies, of course, to contribution of a sponsoring employer's own notes. Don E. Williams Co. v. Commissioner, 429 U.S. 569 (1977).

Respondent argues that this case illustrates the potential for harm if transfer of property by an employer in satisfaction of an existing funding obligation is not a prohibited transaction. We agree with respondent that this case demonstrates potential for abuse. Petitioner, without any apparent cause, overstated the value of the property contributed to the Plan. He had purchased two of the notes at a discount, and, in his business, he was well aware that the face value of the notes was not the fair market value of the notes. He admitted during his testimony at trial that he...