EX-8.1 3 a08-31087_2ex8d1.htm EX-8.1

Exhibit 8.1

 

[Letterhead of Seyfarth Shaw LLP]

 

December 31, 2008

 

Acadia Realty Trust
Suite 260
1311 Mamaroneck Avenue
White Plains, New York 10605

 

Re:                               Tax Opinions

 

Ladies and Gentlemen:

 

We have acted as tax counsel to Acadia Realty Trust, a Maryland real estate investment trust (the “Company”), in connection with the offering (the “Offering”) of up to 2,000,000 of the Company’s common shares of beneficial interest pursuant to that certain Prospectus Supplement dated December 31, 2008 (the “Prospectus Supplement”) to be issued in connection with the Company’s special dividend.  You have requested our opinions as to certain United States federal income tax matters in connection with the Offering.

 

Acadia Realty Limited Partnership, a Delaware limited partnership (the “Operating Partnership”), owns equity interests in existing retail real property (and certain other real property) and associated personal property (the “Properties”).  The Operating Partnership owns some of the Properties directly and owns the remaining Properties through limited liability companies or subsidiary partnerships (individually or collectively, the “Subsidiary Partnerships”).

 

In connection with the opinions rendered below, we have examined the following:

 

I.

 

the Declaration of Trust of the Company, as amended, as filed with the Secretary of State of Maryland;

 

 

 

II.

 

the Company’s Amended Bylaws;

 

 

 

III.

 

the Prospectus Supplement;

 

 

 

IV.

 

the Amended and Restated Limited Partnership Agreement of the Operating Partnership;

 

 

 

V.

 

the certificate, dated the date hereof (the “Officer’s Certificate”), executed and delivered by an officer of the Company, relating to, among other things, certain factual matters, plans and intentions of the Company relevant to the qualification for election and status as a real estate investment trust (“REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”);

 

 

 

VI.

 

the opinions (collectively, the “Prior Year REIT Opinions”): (a)  dated January 12, 2007, January 8, 2007, December 11, 2006, July 18, 2005 and March 1, 2000 rendered by Paul, Hastings, Janofsky & Walker LLP or Battle Fowler LLP to the Company that, commencing with the Company’s taxable year ending December 31, 1999, the Company qualified and will qualify to be taxed as a REIT pursuant to sections 856 through 860 of the Code, and the

 


 

 

 

Company’s proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code; and (b) dated November 10, 2004 and March 31, 2004 rendered by Paul, Hastings, Janofsky & Walker LLP to the Company that, commencing with the Company’s taxable year ending December 31, 1996, the Company qualified and will qualify to be taxed as a REIT pursuant to sections 856 through 860 of the Code, and the Company’s proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code; and

 

 

 

V.

 

such other documents as we have deemed necessary or appropriate for purposes of rendering these opinions.

 

 

 

In connection with the opinions rendered below, we have assumed that:

 

 

 

I.

 

each of the documents referred to above (and any and all amendments thereto) has been duly authorized, executed, and delivered, is authentic, if an original, or is accurate, if a copy, and has not been amended;

 

 

 

II.

 

during each taxable year, including its short taxable year ending December 31, 1993, the Company has operated and will continue to operate in such a manner that will make the representations contained in the Officer’s Certificate true for such taxable years;

 

 

 

III.

 

for periods prior to the Company’s tax year ending December 31, 2001, the Company qualified to be taxed as a REIT pursuant to sections 856 through 860 of the Code and that the Operating Partnership and Subsidiary Partnerships were properly treated for United States federal income tax purposes as partnerships and not as associations taxable as corporations or as publicly-traded partnerships;

 

 

 

IV.

 

the Prior Year REIT Opinions were when issued, and continue to be, true, correct and complete;

 

 

 

V.

 

the Company will not make (nor will it cause or permit to be made) any amendments to its organizational documents or to the organizational documents (including the partnership, operating and/or limited liability company agreement) of the Operating Partnership or of any Subsidiary Partnership after the date of this opinion that would affect the Company’s qualification as a REIT under the Code for any taxable year; and

 

 

 

VI.

 

neither the Operating Partnership nor any Subsidiary Partnership will make an election to be treated as an association taxable as a corporation or other than as a partnership pursuant to Treasury Regulations Section 301.7701-3.

 

 

For purposes of rendering our opinions, we have made such factual and legal inquiries, including by examination of the documents set forth above and discussions with certain Company personnel, including the Company’s tax director, as we have deemed necessary or appropriate for purposes of our opinions.  However, we have not made an independent investigation of the facts contained in

 

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the documents or assumptions set forth above or the representations set forth in the Officer’s Certificate.  We consequently have relied upon the representations in the Officer’s Certificate that the information presented in such documents or otherwise furnished to us is accurate and complete in all material respects relevant to our opinions.  We are not aware of any facts inconsistent with the facts contained in the documents and assumptions set forth above or representations set forth in the Officer’s Certificate.

 

In addition, to the extent that any of the representations provided to us in the Officer’s Certificate are with respect to matters set forth in the Code or the Treasury Regulations promulgated thereunder, we have reviewed with the individual making such representation(s) the relevant portion of the Code and the applicable Treasury Regulations and are reasonably satisfied that such individual understands such provisions and is capable of making such representations.

 

Based on the documents and assumptions set forth above, the representations set forth in the Officer’s Certificate and the discussion in the Prospectus Supplement under the caption “Material United States Federal Income Tax Considerations” (which is incorporated herein by reference), we are of the opinion that:

 

(A)          commencing with the Company’s taxable year ending December 31, 2001, the Company qualified and will qualify to be taxed as a REIT pursuant to sections 856 through 860 of the Code, and the Company’s proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code;

 

(B)           the descriptions of the law and the legal conclusions contained in the Prospectus Supplement under the caption “Material United States Federal Income Tax Considerations” are correct in all material respects, and the discussion contained therein fairly summarizes the United States federal income tax considerations that are material to a holder of the Company’s common shares of beneficial interest; and

 

(C)           the Operating Partnership and Subsidiary Partnerships will be treated for United States federal income tax purposes as partnerships or disregarded entities and not as associations taxable as corporations or as publicly traded partnerships.

 

We undertake no obligation to advise you of any changes in our opinions subsequent to the delivery of this letter.  The Company’s qualification and taxation as a REIT under the Code depends upon the Company’s ability to meet on a continuing basis, through actual operating and other results, the various requirements under the Code with regard to, among other things, the sources of its gross income, the composition of its assets, the level of its distributions to stockholders, and the diversity of its stock ownership.  We will not review on a continuing basis the Company’s compliance with the documents or assumptions set forth above, or the representations set forth in the Officer’s Certificate.  Accordingly, no assurance can be given that the actual results of the Company’s operations, the sources of its gross income, the composition of its assets, the level of the Company’s distributions to its stockholders and the diversity of the Company’s stock ownership for any given taxable year will satisfy the requirements for qualification and taxation as a REIT under the Code.

 

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The foregoing opinions are based on current provisions of the Code and the Treasury Regulations, published administrative interpretations thereof, and published court decisions, any of which could be changed at any time, possibly on a retroactive basis.  The Internal Revenue Service has not issued Treasury Regulations or administrative interpretations with respect to various provisions of the Code relating to REIT qualification under the Code.  No assurance can be given that the law will not change in a manner that will prevent the Company from qualifying as a REIT under the Code, or the Operating Partnership from being classified as a partnership for federal income tax purposes.

 

We hereby consent to the references to Seyfarth Shaw LLP under the captions “Material United States Federal Income Tax Considerations” and “Legal Matters” in the Prospectus Supplement.

 

The foregoing opinions are limited to the United States federal income tax matters addressed herein, and no other opinions are rendered with respect to other United States federal tax matters or to any issues arising under the tax laws of any state or locality or foreign jurisdiction.  We undertake no obligation to update the opinions expressed herein after the date of this letter.

 

Very truly yours,

 

 

/s/ SEYFARTH SHAW LLP

 

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