                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-1158
                                   ___________

Flahertys Arden Bowl, Inc.,          *
                                     *
          Appellant,                 *
                                     * Appeal from the United States
    v.                               * Tax Court.
                                     *
Commissioner of Internal Revenue,    *      [PUBLISHED]
                                     *
          Appellee.                  *
                                ___________

                              Submitted: October 15, 2001
                              Filed: November 16, 2001 (Corrected: 11/27/01)
                                    ___________

Before BOWMAN, BRIGHT, and HANSEN, Circuit Judges.
                          ___________

PER CURIAM.

      Flahertys Arden Bowl, Inc. (Taxpayer), appeals from the decision of the Tax
Court,1 Flahertys Arden Bowl, Inc. v. Comm'r, 115 T.C. 269 (2000), granting
judgment to the Commissioner of the Internal Revenue Service on the
Commissioner's claim that Taxpayer failed to file excise tax returns and pay the




      1
       Honorable Howard A. Dawson, Jr., adopting the opinion of the special trial
judge, Honorable Carleton D. Powell.
required taxes in 1993 and 1994.2 The Tax Court held that Taxpayer was subject to
tax liability under I.R.C. § 4975(a) (1988) as a result of loans made to Taxpayer from
two pension funds in which Patrick F. Flaherty, an officer of Taxpayer who owned
more than fifty per cent of the common stock, was a participant and for which he was
a fiduciary. Taxpayer argues that it was not liable for the tax because Flaherty, who
is indeed a "fiduciary" under the Tax Code definition of that term, see id. § 4975(e)(3)
(1988), is excepted from that definition by a section of ERISA3 codified in Title 29
(Labor), 29 U.S.C. § 1104(c) (1988), that modifies the Tax Code's definition.

      In a thorough opinion, the Tax Court rejected Taxpayer's position. We affirm
based on that court's well-reasoned opinion. See 8th Cir. R. 47B. We agree with the
Tax Court that I.R.C. § 4975(e)(3) is controlling and is not modified by 29 U.S.C.
§ 1104(c). Taxpayer also appeals from the Tax Court's denial of its motion for
reconsideration. We affirm the Tax Court's decision, particularly in view of the
decision in Hillman v. IRS, 250 F.3d 228 (4th Cir.), on reh'g, 263 F.3d 338 (4th Cir.
2001), which reverses the tax court decision upon which Taxpayer's argument for
reconsideration relies.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.



      2
       The Tax Court, however, rejected the Commissioner's decision that Taxpayer
was liable for additions to tax under I.R.C. § 6651(a)(1) (1988).
      3
        Employee Retirement Income Security Act of 1974, Pub. L. No. 93-406, 88
Stat. 829 (codified as amended at 29 U.S.C. §§ 1001-1461 and in scattered sections
of 26 U.S.C.).

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