Pre-Effective Amendment to Registration Statement for Securities of a Real Estate Company — Form S-11
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-11/A Pre-Effective Amendment to Registration Statement 259 1.12M
for Securities of a Real Estate Company
2: EX-1.1 Underwriting Agreement 22 82K
3: EX-3.1 Articles of Incorporation/Organization or By-Laws 54 245K
4: EX-5.1 Opinion re: Legality 2 16K
5: EX-8.1 Opinion re: Tax Matters 3 21K
6: EX-10.1 Material Contract 16 69K
14: EX-10.10 Material Contract 31± 178K
15: EX-10.11 Material Contract 20 163K
16: EX-10.13 Material Contract 5 27K
17: EX-10.14 Material Contract 72 372K
18: EX-10.15 Material Contract 61 336K
7: EX-10.2 Material Contract 10 43K
19: EX-10.23 Material Contract 34 106K
20: EX-10.24 Material Contract 1 12K
21: EX-10.25 Material Contract 35 112K
22: EX-10.26 Material Contract 1 13K
23: EX-10.27 Material Contract 2 16K
24: EX-10.28 Material Contract 4 27K
25: EX-10.29 Material Contract 3 19K
8: EX-10.3 Material Contract 9 39K
26: EX-10.30 Material Contract 26 91K
27: EX-10.31 Material Contract 1 12K
28: EX-10.32 Material Contract 2 15K
29: EX-10.33 Material Contract 3 17K
30: EX-10.34 Material Contract 2 15K
31: EX-10.35 Material Contract 1 12K
9: EX-10.4 Material Contract 3 17K
10: EX-10.5 Material Contract 13 65K
11: EX-10.7 Material Contract 18 63K
12: EX-10.8 Material Contract 5 32K
13: EX-10.9 Material Contract 19 151K
32: EX-23.1 Consent of Experts or Counsel 2± 14K
33: EX-99 Miscellaneous Exhibit 12 50K
EX-8.1 — Opinion re: Tax Matters
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Exhibit 8.1
[NIXON PEABODY LLP LOGO]
ATTORNEYS AT LAW
100 Summer Street
Boston, MA 02110-1832
(617) 345-1000
Fax: (617) 345-1300
April 9, 2004
Boston Capital Real Estate Investment Trust, Inc.
c/o Boston Capital Corporation
One Boston Place, Suite 2100
Boston, MA 02108-4406
Re: Boston Capital Real Estate Investment Trust, Inc.
Registration Statement on Form S-11
Ladies and Gentlemen:
We have acted as counsel to Boston Capital Real Estate Investment
Trust, Inc., a Maryland corporation (the "Company"), in connection with the
registration of 31,500,000 shares of its common stock with the Securities and
Exchange Commission pursuant to a Registration Statement on Form S-11 (as
amended, the "Registration Statement"), which includes the Company's Prospectus
(as amended, the "Prospectus"). In connection therewith, we have been asked to
provide an opinion regarding certain federal income tax matters related to the
Company. Capitalized terms used in this letter and not otherwise defined herein
have the meaning set forth in the Prospectus.
The opinions set forth in this letter are based on the relevant
provisions of the Internal Revenue Code of 1986, as amended (the "Code"),
Treasury Regulations thereunder (including proposed and temporary Regulations),
and interpretations of the foregoing as expressed in court decisions,
legislative history, and existing administrative rulings, policies and practices
of the Internal Revenue Service (the "Service"), including its practices and
policies indicated in private letter rulings (which rulings are not binding on
the Service except, in the case of each such ruling, with respect to the
specific taxpayer that receives such ruling), all as of the date hereof. These
provisions and interpretations are subject to change, which may or may not be
retroactive in effect, which changes could adversely affect the opinions
rendered herein and the tax consequences to the Company and investors in the
Company's common stock.
In rendering this opinion, we have examined the following documents:
(1) the Registration Statement and the facts and descriptions set forth therein
of the Company and its investments, activities, operations and governance; and
(2) the Company's Articles of Incorporation and Bylaws, each as amended to date,
and stock ownership information provided by the Company. The opinions set forth
in this letter also are premised on certain additional information and factual
2
representations received through consultation with officers of the Company,
including those contained in the Company's management representation certificate
to us dated April 1, 2004 (the "Management Representation Certificate"), as are
germane to the determination that the Company will be owned and operated in such
a manner that the Company will satisfy the requirements for qualification as a
REIT under the Code.
We have made such factual and legal inquiries, as we have deemed
necessary or appropriate for purposes of our opinion. For purposes of rendering
our opinion, however, we have not made an independent investigation or audit of
the facts set forth in the above-referenced documents, including the
Registration Statement.
In our review, we have assumed, with your consent, that all of the
information representations and statements set forth in the documents that we
reviewed (including, without limitation, the Management Representation
Certificate) are accurate, true and correct. Moreover, we have assumed that the
Company will be operated in the manner described in its corporate organizational
documents and in the Prospectus. We have assumed for the purposes of this
opinion that the Company is validly organized and duly incorporated under the
laws of the State of Maryland. We also have assumed the genuineness of all
signatures, the proper execution of all documents, the authenticity of all
documents submitted to us as originals, the conformity to originals of documents
submitted to us as copies, and the authenticity of the originals from which any
copies were made.
Based upon, subject to, and limited by the assumptions and
qualifications set forth herein, in the discussion in the Prospectus under the
caption "Material United States Federal Income Tax Considerations" (which is
incorporated herein by reference), and the discussion herein, we are of the
following opinions as of the date hereof:
1. The Company's organization and proposed method of operation (as
described in the Management Representation Certificate and the Prospectus) will
enable the Company to meet the requirements for qualification and taxation as a
REIT in the taxable year 2004 and all subsequent taxable years.
2. The statements contained in the Prospectus under the caption
"Material United States Federal Income Tax Considerations" to the extent that
they describe matters of law and legal conclusions are correct in all material
respects, and the discussion thereunder fairly summarizes the federal income tax
considerations that are likely to be considered material to a holder of the
Company's common stock.
We assume no obligation to advise you of any changes in our opinion
subsequent to the delivery of this opinion letter, and we do not undertake to
update this opinion letter. The Company's qualification and taxation as a REIT
depends upon the Company's ability to meet on a
3
continuing basis, through actual annual operating and other results, the various
requirements under the Code described in the Prospectus with regard to, among
other things, the sources of its gross income, the composition of its assets,
the level and timing of its distributions to stockholders and the diversity of
its stock ownership. Nixon Peabody LLP will not review the Company's compliance
with these requirements on a continuing basis. Accordingly, no assurance can be
given that the actual results of the operations of the Company, the sources of
their income, the nature of their assets, the level of timing of the Company's
distributions to stockholders and the diversity of its stock ownership for any
given taxable year will satisfy the requirements under the Code for
qualification and taxation of the Company as a REIT. In addition, as noted
above, our opinions are based solely on the documents that we have examined, the
additional information that we have obtained, and the representations that have
been made to us, and cannot be relied upon if any of the facts contained in such
documents or in such additional information is, or later becomes, inaccurate or
if any of the representations made to us is, or later becomes, inaccurate.
We also note that an opinion of counsel merely represents counsel's
best judgment with respect to the probable outcome on the merits and is not
binding on the Service or the courts. In certain instances with respect to
matters for which there is no relevant authority, including the effect of
certain transfer restrictions on the ability of the Company to satisfy the
requirement for REIT qualification that its shares be transferable, our opinion
is based on authorities which we have considered to be analogous even though
certain such authorities have been rendered obsolete for unrelated reasons by
subsequent authorities. There can be no assurance that positions contrary to our
opinions will not be taken by the Service, or that a court considering the
issues would not hold contrary to our opinions.
We undertake no obligation to update the opinions expressed herein at
any time after the date hereof. This opinion letter has been prepared for your
use in connection with the filing of the Registration Statement on the date of
this opinion letter. We understand that you intend to distribute copies of this
opinion to Company shareholders who purchase their interests pursuant to the
initial public offering described in the Prospectus and we hereby consent to
such distribution and the reliance by such persons on this opinion.
We hereby consent to the filing of our opinion as an exhibit to the
Registration Statement and to the use of the name of our firm in the
Registration Statement. In giving this consent, however, we do not thereby admit
that we are an "expert" within the meaning of the Securities Act of 1933, as
amended, or that we come within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
or regulations of the Securities and Exchange Commission promulgated thereunder.
Sincerely yours,
NIXON PEABODY LLP
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
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| This ‘S-11/A’ Filing | | Date | | First | | Last | | | Other Filings |
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| Filed on: | | 4/9/04 | | 1 | | | | | None on these Dates |
| | 4/1/04 | | 2 |
| List all Filings |
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