The opinion of the court was delivered by: HART
Pursuant to provisions of the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended by the Multiemployer Pension Plan Amendments Act of 1980, 29 U.S.C. § 1001 et seq., plaintiffs Central States, Southeast and Southwest Areas Pension Fund and its trustees brought this suit against defendants Paul and Lois Johnson to collect the delinquent withdrawal liability of R D Motor Express, Incorporated. The Johnsons are alleged to be members of a control group that includes R D Motor. Plaintiffs moved for summary judgment against both defendants, relying on the statement of uncontested facts contained in the parties' proposed pretrial order. Paul Johnson does not oppose summary judgment, but Lois Johnson does. Lois Johnson instead requests that summary judgment be granted in her favor.
The parties have stipulated to the following facts.
1. Central States, Southeast and Southwest Areas Pension Fund ("Pension Fund") is a multiemployer pension plan within the meaning of Section 3(37) and 4001(a)(3) of ERISA, 29 U.S.C. §§ 1002(37) and 1301(a)(3). Plaintiffs, Marion M. Winstead, Howard McDougall, R.V. Pulliam, Sr., Arthur H. Bunte, Jr., R. Jerry Cook, Robert C. Sansone, Robert J. Baker, and Harold D. Leu, hereinafter referred to as the "Trustees", are the present trustees of the Pension Fund and are collectively the plan sponsor of the Pension Fund within the meaning of Section 4001(a)(1) of ERISA, 29 U.S.C. § 1301(a)(10). The Trustees administer the Pension Fund at 9377 West Higgins Road, Rosemont, Illinois 60018-4938.
5. Johnco, Inc. ("Johnco") was an Indiana corporation with its principal place of business in the State of Indiana.
6. R D Motor Express, Incorporated ("R D Motor") was a subsidiary of Johnco.
7. R D Motor was subject to a collective bargaining agreement executed with a Teamster Local Union under which R D Motor was required to make specified contributions to the Pension Fund when its employees worked pursuant to the terms and conditions of the collective bargaining agreement.
9. In August 1985 Paul E. Johnson leased a building located in Delaware County, Indiana to R D Motor. In addition, in August 1985 Paul E. Johnson leased one semi-tractor to R D Motor and leased another semi-tractor to another corporation known as Davco Trucking Co., Inc. Paul E. Johnson was the owner of record of the leased building and semi-tractors.
10. The leasing activities described in the preceding paragraph were not incorporated.
11. Mr. Paul E. Johnson and his wife, the defendant Mrs. Lois Johnson, have been married for thirty-six (36) years. The monies used to purchase the commercial building and the semi-tractors referenced in paragraph 9, supra, came from joint bank accounts maintained by Mr. and Mrs. Johnson.
12. The rental income produced by the leasing activities described in paragraph 9, supra, was not segregated in a bank account exclusively for Mr. Johnson's use.
13. For the year 1985, Mr. and Mrs. Johnson filed a joint U.S. income tax return. This tax return reported a net loss for tax purposes of $ 9,613 as a result of the leasing activity involving commercial buildings and semi-tractors described in paragraph 9, supra. Mr. and Mrs. Johnson claimed this loss as a deduction from their combined gross income on their 1985 joint U.S. tax return.
14. On or about October 25, 1985, the Pension Fund issued, and shortly thereafter R D Motor, Johnco and all trades or businesses alleged by the Pension Fund to be under common control with them received, a notice and demand for payment of withdrawal in accordance with Sections 4202(2) and 4219(b)(1) of ERISA, 29 U.S.C. § 1399(b)(1). This notice informed Johnco, and all businesses under common control with it, that it was ...