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Are there statutory exemptions from the prohibited transactions rules?

Yes. ERISA details the statutory exemptions from the prohibited transactions provisions, including the following:

As employees of the employer maintaining the plan, most participants are parties in interest. Therefore, loans to participants would violate both the prohibition against lending money to a party in interest and the prohibition against use of plan assets by a party in interest. However, ERISA provides that loans to participants do not constitute prohibited transactions if the loans: (a) are available to all participants and beneficiaries on a reasonably equivalent basis; (b) are not made available to highly compensated employees, officers, or shareholders in an amount greater than the amount made available to other employees; (c) are made in accordance with specific provisions set forth in the plan; (d) bear a reasonable rate of interest; and (e) are adequately secured.

The second prohibited transaction exemption permits "[c]ontracting or making reasonable arrangements with a party in interest for office space, or legal, accounting, or other services necessary for the establishment or operation of the plan, if no more than reasonable compensation is paid therefor." Both the Department of Labor and the Internal Revenue Service have interpreted this exemption to allow a party in interest to provide any necessary service to the plan, so long as both the contract and the compensation are reasonable. In addition to the legal and accounting services noted in the statute, the exemption covers any service that "is appropriate and helpful to the plan . . . in carrying out the purposes for which the plan is established or maintained." Although the exemption mentions only office space and services, the regulations make it clear that the party in interest providing a service to the plan may also furnish necessary goods "in the course of, and incidental to, the furnishing of such service to the plan."

Moreover, ERISA permits loans to an ESOP that primarily benefit participants and beneficiaries and that have a reasonable rate of interest. Collateral, if any, must consist only of qualifying employer securities. Covered credit includes loans from a party in interest or loans guaranteed by a party in interest. An ESOP must use the proceeds from a covered loan to acquire qualifying employer securities or to repay the loan or a prior exempt loan. The loan may allow no recourse against the ESOP. Consequently, if the acquired employer securities do not serve as collateral for an exempt loan guaranteed by the sponsor, repayment of the loan from the proceeds of the sale of the securities might violate the fiduciary duty of prudence and create a prohibited transaction by benefiting the sponsor. Additionally, an exempt loan must provide for the release of the underlying collateral, in stages, as calibrated by regulation.





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