EX-8.1 4 a06-8888_1ex8d1.htm EX-8

Exhibit 8.1

 

 

633 West Fifth Street, Suite 4000

 

Los Angeles, California  90071-2007

 

Tel: (213) 485-1234  Fax: (213) 891-8763

 

www.lw.com

 

 

FIRM / AFFILIATE OFFICES

 

Brussels

New York

 

Chicago

Northern Virginia

 

Frankfurt

Orange County

 

Hamburg

Paris

 

Hong Kong

San Diego

 

London

San Francisco

April 12, 2006

Los Angeles

Shanghai

 

Milan

Silicon Valley

 

Moscow

Singapore

Realty Income Corporation

Munich

Tokyo

220 West Crest Street

New Jersey

Washington, D.C.

Escondido, California 92025-1725

 

Re:                               Realty Income Corporation Shelf Registration

 

Ladies and Gentlemen:

 

We have acted as tax counsel to Realty Income Corporation, a Maryland corporation (the “Company”), in connection with its filing of a registration statement on Form S-3 on the date hereof (such registration statement, together with the documents incorporated by reference therein, the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), relating to the registration of debt securities, shares of preferred stock, par value $1.00 per share, and common stock, par value $1.00 per share, as set forth in the prospectus contained in the Registration Statement.

 

You have requested our opinion concerning certain of the federal income tax considerations relating to the Company, including with respect to its election to be taxed as a real estate investment trust. This opinion is based upon certain assumptions and factual representations, including the facts set forth in the Registration Statement concerning the business, assets and governing documents of the Company and its subsidiaries. We have also been furnished with, and with your consent have relied upon, certain representations made by the Company and its subsidiaries with respect to certain factual matters through a certificate of an officer of the Company, dated as of the date hereof (the “Officer’s Certificate”). With your permission, we have assumed the accuracy of the opinion of Venable LLP, counsel for the Company, addressed to the Company and dated as of the date hereof, with respect to certain matters of Maryland law.

 

In our capacity as tax counsel to the Company, we have made such legal and factual examinations and inquiries, including an examination of originals or copies certified or otherwise identified to our satisfaction of such documents, corporate records and other instruments, as we have deemed necessary or appropriate for purposes of this opinion. For purposes of our opinion, we have not made an independent investigation or audit of the facts set forth in the above referenced documents or in the Officer’s Certificate. In addition, in rendering this opinion we have assumed the truth and accuracy of all representations and statements made to us which are qualified as to knowledge or belief, without regard to such qualification. In our examination, we have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures thereon, the legal capacity of natural persons executing such documents and the conformity to authentic original documents of all documents submitted to us as copies.

 


 

We are opining herein only with respect to the federal income tax laws of the United States, and we express no opinion with respect to the applicability thereto, or the effect thereon, of other federal laws, the laws of any state or other jurisdiction or as to any matters of municipal law or the laws of any other local agencies within any state.

 

Based on such facts, assumptions and representations, it is our opinion that:

 

1.                                       Commencing with the Company’s taxable year ended December 31, 1994, the Company has been organized and has operated in conformity with the requirements for qualification and taxation as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”), and its proposed method of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code.

 

2.                                       The statements in the Registration Statement set forth under the caption “United States Federal Income Tax Considerations Related to Our REIT Election,” insofar as they purport to summarize certain provisions of the agreements, statutes or regulations referred to therein, are accurate summaries in all material respects.

 

No opinion is expressed as to any matter not discussed herein.

 

This opinion is based on various statutory provisions, regulations promulgated thereunder and interpretations thereof by the Internal Revenue Service and the courts having jurisdiction over such matters, all of which are subject to change either prospectively or retroactively. Any such change may affect the conclusions stated herein. Also, any variation or difference in the facts from those set forth in the Registration Statement or the Officer’s Certificate may affect the conclusions stated herein. As described in the Registration Statement, the Company’s qualification and taxation as a real estate investment trust depend upon the Company’s ability to meet the various qualification tests imposed under the Code, including through actual annual operating results, asset composition, distribution levels and diversity of stock ownership, the results of which have not been and will not be reviewed by Latham & Watkins LLP. Accordingly, no assurance can be given that the actual results of the Company’s operation for any particular taxable year will satisfy such requirements. This opinion is rendered to you as of the date of this letter, and we undertake no obligation to update this opinion subsequent to the date hereof.

 

This opinion is rendered only to you and is solely for your benefit in connection with the Registration Statement. This opinion may not be relied upon by you for any other purpose, or furnished to, quoted to, or relied upon by any other person, firm or corporation, for any purpose, without our prior written consent except that this opinion may be furnished or quoted to your legal counsel and to judicial and regulatory authorities having jurisdiction over you. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm name therein under the captions “United States Federal Income Tax Considerations” and “Validity of the Securities.”  In giving this consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the Commission promulgated thereunder.

 

 

Very truly yours,

 

 

 

/s/ LATHAM & WATKINS LLP