10 ing taxable year by the portion of the amount of such reduction in the credit or increase in tax which is attributable to the contribution to such plan, or "(ii) notwithstanding the provisions of paragraph (12), the employer may deduct such portion subject to the limitations of section 404. "(9) For purposes of this subsection "(A) EMPLOYER SECURITIES.—The term 'employer securities' means common stock issued by the employer or a corporation which is a member of a controlled group of corporations which includes the employer (within the meaning of section 1563 (a), determined without regard to section 1563 (a) (4) and (e) (3) (C)) with voting power and dividend rights no less favorable than the voting power and dividend rights of other common stock issued by the employer or such controlling corpora tion, or securities issued by the employer or such controlling corporation, convertible into such stock, and "(B) VALUE.-The term 'value' means the average of closing prices of the employer's securities, as reported by a national exchange on which securities are listed, for the 20 consecutive trading days immediately preceding the date of transfer or 11 allocation of such securities or, in the case of secu rities not listed on a national exchange, the fair market value as determined in good faith and in accordance with the regulations issued by the Secretary. "(10) The Secretary shall prescribe such regulations and require such reports as may be necessary to carry out the provisions of this section. "(11) If the employer fails to meet any requirement imposed under this section or under any obligation undertaken to comply with a requirement of this section, he is liable to the United States for a civil penalty of an amount equal to the amount involved in such failure. The preceding sentence shall not apply if the taxpayer corrects such failure (as determined by the Secretary) within 90 days after notice thereof. For purposes of this paragraph, the term ‘amount involved' means an amount determined by the Secretary, but not in excess of the plied by the number of months (or parts thereof) during which such failure continues. The amount of such penalty may be collected by the Secretary in the same 12 manner in which a deficiency in the payment of Federal income tax may be collected. "(12) Notwithstanding any provision of this title to the contrary, no deduction shall be allowed under section 162, 212, or 404 for amounts transferred to an employee stock ownership plan and taken into account under this subsection. "(13) (A) As reimbursement for the expense of establishing the plan, the employer may withhold from amounts due the plan for the taxable year for which the plan is established, or the plan may pay, so much of the amounts paid or incurred in connection with the establishment of the plan as does not exceed the sum of 10 percent of the first $100,000 that the employer is required to transfer to the plan for that taxable year under paragraph (6) (including any amounts transferred under subsection (e) (3)) and 5 percent of any amount in excess of the first $100,000 of such amount. "(B) As reimbursement for the expense of administering the plan, the employer may withhold from amounts due the plan, or the plan may pay, so much of the amounts paid or incurred during the taxable year as expenses of administering the plan as does not exceed the smaller of- "(i) the sum of 10 percent of the first $100, 13 000 and 5 percent of any amount in excess of $100,000 of the income from dividends paid to the plan with respect to stock of the employer during the plan year ending with or within the employer's taxable year, or "(ii) $100,000. "(14) The return of a contribution made by an employer to an employee stock ownership plan designed to satisfy the requirements of this subsection or subsection (b) (or a provision for such a return) does not fail to satisfy the requirements of this subsection, subsection (b), section 401 (a), or section 403 (c) (1) of the Employee Retirement Income Security Act of 1974 if"(A) the contribution is conditioned under the plan upon determination by the Secretary that such plan meets the applicable requirements of this subsection, subsection (b), or section 401 (a), "(B) the application for such a determination is filed with the Secretary not later than 90 days after the date on which the credit under section 44C is allowed, and "(C) the contribution is returned within one year after the date on which the Secretary issues notice to the employer that such plan does not 14 satisfy the requirements of this subsection, subseetion (b), or section 401 (a). "(15) Notwithstanding any provision of this title to the contrary, employees who are included in a unit of employees covered by a collective bargaining agreement between an employee representative and one or more employers and who satisfy the minimum age and service requirements, if any, established by the plan shall not be excluded from eligibility under the plan, unless the employee representative declines coverage for employees in the unit. Where the employee representative declines coverage, section 410 (b) (2) (A) shall apply. "(b) ADDITIONAL PLAN REQUIREMENTS.— "(1) The employer may not make participation in the plan a condition of employment and the plan may not require matching employee contributions as a condition of participation in the plan. "(2) Employee contributions (if any) under the plan must meet the requirements of section 401 (a) (4) (relating to contributions). "(c) RECAPTURE.— 66 "(1) GENERAL RULE.-Amounts transferred to a plan under subsection (a) (6) may be withdrawn from |