EX-23 16 exh23-2dbrconsent.htm EX-23.2 CONSENT OF DBR

Exhibit 23.2

[ DRINKER BIDDLE & REATH LLP ]

January 25, 2008

Royal Caribbean Cruises Ltd.

1050 Caribbean Way
Miami, FL 33132
 

     Form 10-K for Year Ended December 31, 2007

Dear Sirs and Mesdames:
 
          You have asked for our opinion on certain U.S. Federal income tax matters relating to Royal Caribbean Cruises Ltd. (the “Company”).
 
          For purposes of rendering our opinion, we have examined originals, copies or certified copies of all such documents as we have deemed relevant and necessary. We have with your approval assumed the authenticity of all documents submitted to us as originals, and the conformity to original documents of all documents submitted to us as copies. As to questions of fact material to this opinion, we have, when relevant facts were not independently established, relied upon certificates of public officials and statements of representatives of the Company and of shareholders of the Company.

Certain Factual Assumptions

          In issuing our opinion, we have relied upon representations and/or publicly available information that:
 
          (1) the Company and each of its direct and indirect wholly-owned subsidiaries that operate or own a ship or ships are corporations formed under the laws of Liberia or Malta, each of which is a country that exempts from taxation all international shipping income (including bareboat charter income) of U.S. corporations;
 
          (2) more than 50% of the outstanding shares of Company common stock are owned by persons each of whom owns less than 5% of such outstanding shares (treating as one person for this purpose any two or more persons who are related within the meaning of section 267(b) of the Internal Revenue Code of 1986, as amended (the “Code”));1

 



1.      Code §267(b) describes a number of relationships between two or more persons, including members of the same family, a grantor and a fiduciary of a trust, a fiduciary and a beneficiary of a trust, and various other relationships between individuals and entities and between entities. Additional attribution rules applicable under Code §267(b) are set forth in Code §267(c).

 

Royal Caribbean Cruises Ltd.

January 25, 2008

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          (3) more than 20% of the outstanding shares of Company common stock are owned directly by the Company’s largest shareholder, which is a Norwegian company, owned beneficially by individuals who are residents of Norway2 (which is another country that exempts from taxation all international shipping income of U.S. corporations);

          (4) the common stock of the Company is the Company’s only outstanding class of stock;

          (5) all outstanding shares of common stock of the Company are listed for trading on the New York Stock Exchange (the “NYSE”), where those shares are regularly quoted by dealers making a market in the stock (by regularly and actively offering to make, and making, purchases and sales of such shares in the ordinary course of business to and from customers who are not related persons with respect to the dealers), and Company shares are not traded on any non-U.S. securities market other than the Oslo Stock Exchange;

          (6) trades of Company common stock are effected on each of the NYSE and the Oslo Stock Exchange in other than de minimis quantities on at least 60 days during each year, and the aggregate number of such shares traded on each of the NYSE and the Oslo Stock Exchange each year equals or exceeds 10% of the average number of shares of Company common stock outstanding during the year;

          (7) the NYSE is a national securities exchange that is registered under section 6 of the Securities Act of 1934;

          (8) the Oslo Stock Exchange is officially recognized, sanctioned or supervised by a governmental authority of Norway and has an annual trading volume in excess of $1 billion; and


2.     Regulations under Code §883 provide, in relevant part, that an individual is a “resident” of a qualifying foreign country such as Norway only if the individual is fully liable to tax as a resident in that country and (1) has a “tax home” there for 183 days or more of the taxable year or (2) is treated as a resident of that country under the income tax treaty, if any, between that country and the United States. Treas. Reg. §§1.883-4(b)(2)(i), (b)(3). An individual’s tax home is his regular or principal place of business or, in the absence of such a place of business, his regular place of abode in a real and substantial sense. Treas. Reg. §1.883-4(b)(2)(ii).

 

Royal Caribbean Cruises Ltd.

January 25, 2008

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          (9) the Company’s certificate of incorporation precludes any person from acquiring more than 4.9% of the outstanding shares of Company’s common stock (treating as one person for this purpose any two or more persons who are related within the meaning of Code section 267(b)), except that this restriction does not apply to existing 5% shareholders of the Company and may not apply, under Liberian law, to shares that were not voted in favor of the adoption of such restriction.

Discussion
 

          Under Code section 883, certain foreign corporations are exempt from Federal income or branch profits tax on income derived from or incidental to the international operation of a ship or ships, including income from the leasing of such ships. A foreign corporation will qualify for the benefits of section 883 if, in relevant part, (1) the foreign country in which the foreign corporation is organized grants an equivalent exemption to corporations organized in the United States and (2) (a) more than 50% of the value of the corporation’s capital stock is owned, directly or indirectly, by individuals who are residents of a foreign country or countries that grant such an equivalent exemption to corporations organized in the United States or (b) the stock of the corporation (or the direct or indirect corporate parent thereof) is “primarily and regularly traded on an established securities market” in the United States or another qualifying country.
 
          The Company and each of its subsidiaries that owns or operates a ship or ships should meet the requirements of clause (1) above because Liberia and Malta are countries that grants an equivalent exemption.3

           With respect to the requirements of clause (2)(b) above, regulations and other guidance under Code section 883 set forth the tests applicable to determine whether a corporation’s shares of stock should be considered “primarily and regularly traded on an established securities market” in the United States or another qualifying country.


3     Rev. Rul. 2001-48, 2001-2 C.B. 324; see Exchange of Notes Between Liberia Ministry of Foreign Affairs, dated Oct. 7, 1987, and U.S. Embassy, Monrovia, Liberia, dated Oct. 23, 1987, reprinted at 1988-1 C.B. 463; Exchange of Notes Between Liberia Ministry of Foreign Affairs, dated Dec. 9, 2004, and U.S. Embassy, Monrovia, Liberia, dated June 4, 2005; Exchange of Notes Between Liberia Ministry of Foreign Affairs, dated Dec. 9, 2004, and U.S. Embassy, Monrovia, Liberia, dated June 4, 2005; Exchange of Notes Between Embassy of Malta, Washington, D.C., dated Dec. 26, 1996, and U.S. Department of State, dated Mar. 11, 1997, reprinted at 1997-1 C.B. 314.

 

Royal Caribbean Cruises Ltd.

January 25, 2008

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          The Company’s shares are traded on an established securities market in the United States and on an established securities market in Norway, which is a qualifying country for section 883 purposes. The NYSE constitutes an established securities market for purposes of section 883 because it is a “national securities exchange that is registered under section 6 of the Securities Act of 1934.”4 Likewise, the Oslo Stock Exchange constitutes an established securities market because it is “officially recognized, sanctioned, or supervised by a governmental authority of [Norway], and has an annual value of shares traded on the exchange exceeding $1 billion.”5 Norway is a qualifying country for section 883 purposes.6 

          The Company’s shares are considered “primarily” traded on either the NYSE or the Oslo Stock Exchange, because the number of such shares traded on one of those markets during the year exceeds the number of such shares traded on any other established securities market during that year.7 

          Stock will generally be considered “regularly traded” on a securities market if trades in more than de minimis quantities occur on the market on at least sixty days of the year, and the annual trading volume on the market equals or exceeds 10% of the outstanding shares.8 The Company’s shares meet this test with respect to both the NYSE and the Oslo Stock Exchange. The Company’s shares also meet an alternative basis for such a conclusion with respect to the NYSE, inasmuch as the stock is regularly quoted by dealers making a market in the stock.9 

          If 50% or more of a corporation’s outstanding shares are owned by 5% or greater shareholders other than registered investment companies (a “closely-held group”), the regulations under Code section 883 provide that the shares generally will fail to be treated as “regularly traded” unless the corporation can identify sufficient qualified direct or indirect shareholders within the closely-held group as to reduce to 50% or less the


4.     Treas. Reg. §1.883-2(b)(1)(ii).

5.      Treas. Reg. §1.883-2(b)(1)(i).

6.     Rev. Rul. 2001-48, 2001-2 C.B. 324; see Exchange of Notes Between U.S. Department of State, dated May 22, 1990, and Royal Norwegian Embassy, dated May 24, 1990, reprinted at 1991-1 C.B. 304.

7.     Treas. Reg. §1.883-2(c).

8.     Treas Reg. §1.883-2(d)(1)(ii).

9.     Treas. Reg. §1.883-2(d)(2).

 

Royal Caribbean Cruises Ltd.

January 25, 2008

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aggregate shares owned by the closely-held group that are not owned, directly or indirectly, by qualified shareholders.10 Less than 50% of the Company’s outstanding shares are owned by such 5% or greater shareholders, so the Company should not be disqualified by reason of the closely-held exception. Moreover, even if the Company’s closely-held group would otherwise exceed that 50% threshold in aggregate, the percentage of shares owned by the Company’s largest shareholder, which is Norwegian company owned by Norwegian residents, could be deducted for this purpose.

Conclusion

          Based upon, and subject to, the factual representations and assumptions described above, and the legal authorities and limitations set forth below, it is our opinion that the income of the Company, and its subsidiaries who own or operate a ship or ships, to the extent derived from or incidental to the operation of a ship or ships, is exempt from Federal income tax pursuant to Code section 883.

*          *          *          *          *

          This opinion represents our best legal judgment, but it has no binding effect or official status of any kind, and no assurance can be given that contrary positions may not be taken by the Internal Revenue Service or a court considering the issues. We express no opinion relating to any Federal income tax matter except on the basis of the facts described above, and any changes in such facts could require a reconsideration and modification of our opinion. We also express no opinion regarding tax consequences under foreign, state or local laws. In issuing our opinion, we have relied solely upon existing provisions of the Code, existing and proposed regulations under it, and current administrative positions and judicial decisions. Those laws, regulations, administrative positions and judicial decisions are subject to change at any time. Any such changes could affect the validity of the opinion set forth above. Also, future changes in Federal tax laws and the interpretation thereof can have retroactive effect.
 
          Our firm includes lawyers admitted to practice in the Commonwealth of Pennsylvania, the States of California, Delaware, Illinois, New Jersey, New York and Wisconsin, and the District of Columbia. We do not purport to be experts in the laws of any other jurisdiction, aside from U.S. Federal law.
 
          We hereby consent to the references to our firm and this opinion contained in the Company’s Form 10-K for the year ended December 31, 2007 under the captions

 

10.     Treas. Reg. §1.883-2(d)(3).

 

Royal Caribbean Cruises Ltd.

January 25, 2008

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“Business – Taxation of the Company – United States Federal Income Tax – Application of Section 883 of the Internal Revenue Code” and “Risk Factors – A change in our tax status under the United States Internal Revenue Code may have adverse effects on our income.” By giving this consent, we do not concede that we are experts within the meaning of the Securities Act of 1933 and rules and regulations issued by the Securities and Exchange Commission under that Act, nor do we intend by this letter to certify any portion of such Form 10-K.
                              

 

Very truly yours, 
 

 /s/ Drinker Biddle & Reath LLP
 

DRINKER BIDDLE & REATH LLP