EXHIBIT 3.3
DORSEY & WHITNEY LLP
COUNSELORS AT LAW
250 Park Avenue
New York, NY 10177
Writer's Direct Dial
(212) 415-9286
Fax: (212) 953-7201
December 9, 2009
The Bank of New York, as Trustee of
Claymore Securities Defined Portfolios, Series 648
Income Closed-End & Treasury Allocation Portfolio, Series 6
2 Hanson Place, 12th Floor
Brooklyn, New York 11217
Ladies and Gentlemen:
We are acting as special New York tax counsel for purposes of determining the
applicability of certain New York taxes in connection with that certain
Reference Trusts Agreement (the "Trust Agreement") dated as of today's date
between Claymore Securities, Inc. Fixed Income Securities, L.P. as Depositor
(the "Depositor" and The Bank of New York Mellon, as Trustee (the "Trustee"),
establishing Claymore Securities Defined Portfolios, Series 648, Income
Closed-End & Treasury Allocation Portfolio, Series 6 ( the "Trusts") and the
execution by the Trustee under the Trusts Agreement, of receipts for units
evidencing ownership of all of the units of fractional undivided interest (such
receipts for units and such aggregate units being herein respectively called
"Receipts for Units" and "Units") in the Trusts, as set forth in the prospectus,
(the "Prospectus") included in the registration statement on Form S-6, as
amended to the date hereof (the "Registration Statement"), relating to the
Trusts. For purposes of this opinion, it is assumed that the assets of the
Trusts (which we have not examined and express no opinion with respect to) will
consist of interests in qualified regulated investment companies (the "RICs")
under the Internal Revenue Code of 1986, as amended (the "Code"). The RICs held
by the Trusts shall be referred to as the "Securities." We note that the Trusts
may hold other assets. We express no opinion as to the effect of holding such
other assets on the conclusions reached herein. It is noted that no opinion is
expressed herein with regard to the federal tax aspects of the Securities, the
Trusts, the Units or any interest, gains or losses in respect thereof.
The Trustee did not participate in the selection of the Securities to be
deposited in the Trusts, and, upon the receipt thereof, will cause the number of
Units representing the entire capital of the Trusts to be deposited in the
Depositor's account at The Depository Trusts Company, as more fully set forth in
the Prospectus. The Units, which are represented by book entry positions, will
be offered to the public upon the effectiveness of the Registration Statement.
The duties of the Trustee, which are ministerial in nature, will consist
primarily of crediting the appropriate accounts with interest received by the
Trusts and with the proceeds from the disposition of securities held in the
Trusts and the distribution of such payments and proceeds to the Unit holders.
The Trustee will also maintain records of the registered holders of Units
representing an interest in the Trusts and administer the redemption of Units by
such registered holders and may perform certain administrative functions with
respect to an automatic reinvestment option.
Generally, Securities held in the Trusts may be removed therefrom by the
Trustee at the direction of the Depositor upon the occurrence of certain
specified events which adversely affect the sound investment character of the
Trusts, such as default by the issuer in payment of declared dividends or of
interest or principal on one or more of its debt obligations.
Prior to the termination of the Trusts, the Trustee is empowered to sell
Securities designated by the Depositor only for the purpose of redeeming Units
tendered to it and of paying expenses for which funds are not available. The
Trustee does not have the power to vary the investment of any Unit holder in the
Trusts, and under no circumstances may the proceeds of sale of any Securities
held by the Trusts be used to purchase new Securities to be held therein.
Article 9-A of the New York Tax Law imposes a franchise tax on business
corporations. For purposes of that Article, Section 208.l(d) defines the term
"corporation" to include, among other things, "any business conducted by a
trustee or trustees wherein interest or ownership is evidenced by certificate or
other written instrument."
The Regulations promulgated under Section 208 provide as follows:
(b) The term corporation includes . . . any business conducted by a trustee
or trustees wherein interest or ownership is evidenced by certificate or other
written instrument.
(2) A business conducted by a trustee or trustees in which interest or
ownership is evidenced by certificate or other written instrument includes, but
is not limited to, an association commonly referred to as a business trust or
Massachusetts trust. In determining whether a trustee or trustees are conducting
a business, the form of the agreement is of significance but is not controlling.
The actual activities of the trustee or trustees, not their purposes and powers,
will be regarded as decisive factors in determining whether a trust is subject
to tax under Article 9 A of the Tax Law. The mere investment of funds and the
collection of income therefrom with incidental replacement of securities and
reinvestment of funds, does not constitute the conduct of a business in the case
of a business conducted by a trustee or trustees. 20 NYCRR 1-2.5(b).
New York cases dealing with the question of whether a trust will be subject
to the franchise tax have also delineated the general rule that where a trustee
merely invests funds and collects and distributes the income therefrom, the
trust is not engaged in business and is not subject to the franchise tax,
Burrell v. Lynch, 274 A.D. 347, 84 N.Y.S.2d 171 (3rd Dept, 1948), order
resettled, 274 A.D. 1073, 85 N.Y.S.2d 703 (3rd Dept. 1949).
In an opinion of the Attorney General of the State of New York, 47 N.Y.
Att'y. Gen, Rep. 213 (Nov. 24, 1942), it was held that where the trustee of an
unincorporated investment Trusts was without authority to reinvest amounts
received upon the sales of securities and could dispose of securities making up
the trust only upon the happening of certain specified events or the existence
of certain specified conditions, the trust was not subject to the franchise tax.
See also Fibreboard Asbestos Compensation Trusts (Advisory Opinion) Commission
of Taxation and Finance, TSB-A-97(3)C and TSB-A-97(1)I, January 21, 1997.
In the instant situation, the Trustee is not empowered to, and we assume will
not, sell Securities contained in the corpus of the Trusts and reinvest the
proceeds therefrom. Further, the power to sell such Securities is limited to
circumstances in which the creditworthiness or soundness of the issuer of such
Security is in question or in which cash is needed to pay redeeming Unit holders
or to pay expenses, or where a Trust liquidated subsequent to the termination of
such Trust. In substance, the Trustee will merely collect and distribute income
and will not reinvest any income or proceeds, and the Trustee has no power to
vary the investment of any Unit holder in the Trusts.
Under Subpart E of Part I, Subchapter J of Chapter 1 of the Code the grantor
of a trust will be deemed to be the owner of the trust under certain
circumstances, and therefore taxable on his proportionate interest in the income
thereof. Where this federal tax rule applies, the income attributed to the
grantor will also be income to him for New York income tax purposes. See
TSB-M-78(9)C, New York Department of Taxation and Finance, June 23, 1978.
By letter dated today, Chapman and Cutler LLP rendered its opinion that each
Unit holder will be considered as owning a share of each asset of a Trust in the
proportion that the number of Units held by such holder bears to the total
number of Units outstanding and the income of a Trust will be treated as the
income of each Unit holder in said proportion pursuant to Subpart E of Part I,
Subchapter J of Chapter 1 of the Code.
Based on the foregoing and on the opinion of Chapman and Cutler LLP, dated
today, upon which we specifically rely, we are of the opinion that under
existing laws, rulings, and court decisions interpreting the laws of the State
and City of New York:
1. The Trusts will not constitute an association taxable as a corporation
under New York law, and, accordingly, will not be subject to tax on
its income under the New York State franchise tax or the New York City
general corporation tax.
2. The income for the Trusts will be treated as the income of the Unit
holders under the income tax laws of the State and City of New York.
3. Unit holders who are not residents of the State of New York are not
subject to the income tax laws thereof with respect to any interest or
gain derived from the Trusts or any gain from the sale or other
disposition of the Units, except to the extent that such interest or
gain is from property employed in a business, trade, profession or
occupation carried on in the State of New York.
No opinion is expressed herein regarding the federal income tax aspects or
any other state or local tax aspects of the Trusts, the Securities or the Units.
No opinion is expressed with respect to the taxation of the Trusts, the
Securities or the Unit holders under any provisions of New York State or New
York City tax law except for the conclusions set forth above.
We hereby consent to the filing of this opinion letter as an exhibit to the
Registration Statement relating to the Units and to the use of our name and the
reference to our firm in the Registration Statement and in the Prospectus. In
giving this consent, we do not thereby admit that we are included in the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933 or the rules and regulations of the Securities and Exchange
Commission.
Very truly yours,
/s/ DORSEY & WHITNEY LLP
DORSEY & WHITNEY LLP