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Hugh Janow
Janow & Meyer, LLC
One Blue Hill Plaza
P.O. Box 1606 Suite 1006
Pearl River, New York 10965-8606
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2000-10A
ERISA Sec. 4975(c)(1)
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Dear Mr. Janow:
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This is in response to your request for an advisory opinion under section
4975 of the Internal Revenue Code (Code). Specifically, you ask whether
allowing the owner of an IRA to direct the IRA to invest in a limited
partnership, in which relatives and the IRA owner in his individual capacity
are partners, will violate section 4975 of the Code.(1)
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You represent that the Fetner Family Partnership is a New York general
partnership that is an investment club (the Partnership), in which Mr.
Adler, through a general partnership known as Esponda Associates (Esponda),
and various relatives of Mr. Adler invest. Through his investment in Esponda,
which is a pass-through partnership, Mr. Adler owns a 12.11 percent interest
in the Partnership. Mr. Adler presently owns a 30.38 percent interest in
Esponda. The only other partner in Esponda is David Geiger, who is unrelated
to Mr. Adler. Esponda currently owns a 39.85 percent interest in the
Partnership.
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The other current partners of the Partnership are as follows: Steven Adler
(Mr. Adler’s son) — 5.25%; Jack Fetner (Mr. Adler’s father-in-law) —
13.44%; Adam Nadel (Mr. Adler’s son’s brother-in-law); Fay Nadel (Mr.
Adler’s mother-in-law) — 25.55%; Andrea Raskin (Mr. Adler’s daughter)
— 5.33%; Lois Zoldon (Mr. Adler’s sister-in-law) — 7.57%.
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The Partnership’s assets are managed by Bernard L. Madoff Investment
Securities (Madoff), which is unrelated to Mr. Adler. Madoff requires
entities to maintain a minimum capital account. You represent that the
Partnership currently has an account with Madoff and has not received any
notice that its does not meet minimum capital requirements for investment
management by Madoff. The IRA’s assets are not necessary for the
Partnership to continue its account with Madoff.
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You represent that Leonard Adler intends to open a self-directed individual
retirement account (IRA) in the amount of approximately five hundred
thousand ($500,000.00) dollars through Retirement Accounts, Inc. of Denver,
Colorado. At the time Mr. Adler directs the IRA investment, the Partnership
will become a limited Partnership. Mr. Adler will be the only general
partner in the Partnership and will own 6.52%. Mr. Adler will not have any
investment management functions with respect to the assets of the
Partnership.
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The limited partners and their percentage ownership interests will be as
follows: Andrea Raskin — 1.35%; Steven Adler — 3.07%; Jack Fetner —
3.94%; Fay Nadel — 18.1%; Adam Nadel — 1.77%; Lois Zoldon — 5.55%;
David Geiger — 20.31%; IRA of Leonard Adler — 39.38%. Messrs. Adler and
Geiger will invest directly in the Partnership in the same percentages as
they would have invested through Esponda, instead of investing through
Esponda. Esponda will no longer invest in the Partnership.
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You further represent that Mr. Adler believes that Madoff would effectively
manage assets for the IRA, but that Mr. Adler’s IRA does not meet the
minimum capital requirements (currently $1 million) for investment
management by Madoff. You represent, however, that Madoff will manage the
IRA’s assets if it invests with Madoff through the Partnership, even
though the IRA by itself otherwise would not meet the minimum capital
requirements. You further represent that all of the assets of the
Partnership are liquid marketable securities. You also represent that none
of the funds contributed by the IRA is required to be used, or will be used,
to liquidate or redeem any other partner’s interest in the Partnership.
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Finally, you represent that Mr. Adler does not and will not receive any
compensation from the Partnership. He likewise will not receive any
compensation as a result of the acquisition by the IRA of its limited
partnership interest.
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You ask whether the investment by the IRA in the Partnership will give rise
to a prohibited transaction under section 4975 of the Code. Section
4975(e)(1) of the Code, in relevant part, defines the term “plan” to
include an IRA, described in section 408(a) of the Code. Section 4975(e)(2)
of the Code defines “disqualified person,” in relevant part, to include
a fiduciary, a relative, and a partnership, of which (or in which) 50
percent or more of the capital interest or profits interest of such
partnership is owned directly or indirectly, or held by a fiduciary. Section
4975(e)(3) of the Code defines the term “fiduciary,” in part, to include
any person who exercises any discretionary authority or discretionary
control respecting management of such plan or exercises any authority or
control regarding management or disposition of its assets. In order for a
prohibited transaction to occur under section 4975 of the Code, there must
be a transaction involving a disqualified person with respect to a plan.
Where none of the relationships described in section 4975(e)(2) of the Code
are found to exist, an entity would not be a disqualified person with
respect to a plan.
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Section 4975(c)(1)(A) of the Code prohibits any direct or indirect sale or
exchange or leasing, of any property between a plan and a disqualified
person. Section 4975(c)(1)(D) of the Code prohibits any direct or indirect
transfer to, or use by or for the benefit of, a disqualified person of the
income or assets of a plan. Section 4975(c)(1)(E) of the Code prohibits a
fiduciary from dealing with the income or assets of a plan in his or her own
interest or for his or her own account. Section 54.4975-6(a)(5) of the
Pension Excise Tax Regulations characterizes transactions described in
section 4975(c)(1)(E) as involving the use of authority by fiduciaries to
cause plans to enter into transactions when those fiduciaries have interests
which may affect the exercise of their best judgment as fiduciaries.
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As a trustee with investment discretion over the assets of his IRA, Mr.
Adler is a fiduciary, and therefore, a disqualified person under section
4975(e)(2) of the Code. Mr. Adler is also a disqualified person in his
capacity as the general partner of the Partnership to the extent he
exercises discretionary authority over the administration or management of
the IRA assets invested in the Partnership. In addition, although Mr. Adler,
his son and his daughter are disqualified persons, you represent that the
investment transaction is between the Partnership itself and the IRA, and
not with Mr. Adler and his family, except as fellow investors in the
Partnership. Mr. Adler owns only 6.5 percent of the Partnership, and
therefore the Partnership itself is not a disqualified person under section
4975(e)(2)(G) of the Code which defines a disqualified person to include a
corporation, partnership or trust or estate of which 50 percent or more of
the capital interest is owned directly or indirectly, or held by persons
described as fiduciaries.
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Based solely on the facts and representations contained in your submissions,
it is the opinion of the Department that the IRA’s purchase of an interest
in the Partnership would not constitute a transaction described in section
4975(c)(1)(A) of the Code (prohibiting any direct or indirect sale or
exchange or leasing of any property between a plan and a disqualified
person).
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Whether the proposed transaction would violate sections 4975(c)(1)(D) and
(E) of the Code raises questions of a factual nature upon which the
Department will not issue an opinion. A violation of section 4975(c)(1)(D)
and (E) would occur if the transaction was part of an agreement, arrangement
or understanding in which the fiduciary caused plan assets to be used in a
manner designed to benefit such fiduciary (or any person which such
fiduciary had an interest which would affect the exercise of his best
judgment as a fiduciary).
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In this regard, the Department notes Mr. Adler does not and will not receive
any compensation from the Partnership and will not receive any compensation
by virtue of the IRA’s investment in the Partnership. However, the
Department further notes that if an IRA fiduciary causes the IRA to enter
into a transaction where, by the terms or nature of that transaction, a
conflict of interest between the IRA and the fiduciary (or persons in which
the fiduciary has an interest) exists or will arise in the future, that
transaction would violate either 4975(c)(1)(D) or (E) of the Code. Moreover,
the fiduciary must not rely upon and cannot be otherwise dependent upon the
participation of the IRA in order for the fiduciary (or persons in which the
fiduciary has an interest) to undertake or to continue his or her share of
the investment. Furthermore, even if at its inception the transaction did
not involve a violation, if a divergence of interests develops between the
IRA and the fiduciary (or persons in which the fiduciary has an interest),
the fiduciary must take steps to eliminate the conflict of interest in order
to avoid engaging in a prohibited transaction. Nonetheless, a violation of
section 4975(c)(1)(D) or (E) will not occur merely because the fiduciary
derives some incidental benefit from a transaction involving IRA assets.
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Moreover, the Department notes that by virtue of the
contemplated investment by the IRA in the Partnership, there will be
significant investment in the Partnership by benefit plan investors. See
29 CFR § 2510.3-101(f). Accordingly, the Partnership will hold “plan
assets” within the meaning of that term in the Department’s
regulations at 29 CFR § 2510.3-101. As a result, any person who exercises
discretionary authority or control with respect to assets of the
Partnership will be fiduciary of the IRA and subject to the restrictions
of section 4975(c)(1) of the Code, except to the extent a statutory or
administrative exemption applies.
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This letter constitutes an advisory opinion under ERISA
Procedure 76-1, 41 Fed. Reg. 36281 (1976). Accordingly, this letter is
issued subject to the provisions of that procedure, including section 10
thereof, relating to the effect of advisory opinions.
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Sincerely,
Louis Campagna
Chief, Division of Fiduciary Interpretations
Office of Regulations and Interpretations
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Under Presidential Reorganization
Plan No. 4 of 1978, effective December 31, 1978, the authority of the
Secretary of the Treasury to issue interpretations regarding section
4975 of the Code has been transferred, with certain exceptions not
here relevant, to the Secretary of Labor and the Secretary of the
Treasury is bound by the interpretations of the Secretary of Labor
pursuant to such authority.
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