"The court chose to look beyond the 'organizational formalities' employed by the funds and to assert that ... state law forms cannot be elevated over substance when it comes to analyses under ERISA.... The Sun Capital court's 'common control' analysis is interesting in that it amounts to what is essentially a conclusion under the tax law regarding a de facto partnership; yet, the case is not a tax case, the [IRS] is not a party and there is no reason to believe the IRS has ever or will ever assert a partnership-in-fact under these facts."

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