EXHIBIT 8
[Winthrop & Weinstine Logo]
June 27, 2011
American Church Mortgage Company
10237 Yellow Circle Drive
Minnetonka, Minnesota 55343
Re: American Church Mortgage Company
Ladies and Gentlemen:
We have acted as special United Stated federal income tax counsel to
American Church Mortgage Company, a Minnesota corporation (the "Company"), with
respect to the preparation and filing by the Company of Post-Effective Amendment
No. 3 to Registration Statement on Form S-11 (the "Registration Statement"; SEC
File No. 333-154831), containing a prospectus (the "Prospectus"), under the
Securities Act of 1933, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder (collectively the
"1933 Act"), with respect to the registration of $20,000,000 of Series C Secured
Investor Certificates (the "Certificates") of the Company.
In connection with rendering the opinions expressed below, we have
examined originals (or copies identified to our satisfaction as true copies of
the originals) of the following documents (collectively, the "REVIEWED
DOCUMENTS"):
(1) the Company's Articles of Incorporation (the "COMPANY CHARTER");
(2) the Company's Bylaws (the "COMPANY BYLAWS");
(3) the Registration Statement; and
(4) such other documents that the Company may have presented to us from
time to time.
In addition, we have relied upon the factual representations contained in
the Company's certificate, dated as of the date hereof (the "OFFICER'S
CERTIFICATE"), executed by a duly appointed officer of the Company, setting
forth certain representations relating to the organization and operation of the
Company.
For purposes of our opinions, we have not made an independent
investigation of the information set forth in the documents that we have
reviewed or on which we have relied. We consequently have assumed that the
information, including all representations and statements of a factual nature,
presented in such documents or otherwise furnished to us by the Company
accurately and completely describes all material information relevant to our
opinions and that all of the obligations imposed by any such documents on the
parties thereto have been, and will be,
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June 27, 2011
Page 2
performed or satisfied in accordance with their terms. Any representation or
statement in any such document or otherwise furnished to us that has been made
"to the best of our knowledge" or otherwise similarly qualified is assumed to be
correct and complete. In the course of our representation of the Company, no
information has come to our attention that would cause us to question, in a
material way, the accuracy or completeness of the documents that we have
reviewed or on which we have relied or the information, including
representations and statements, that is contained in such documents or otherwise
furnished to us. Any alteration of the information that is set forth in the
documents that we have reviewed or on which we have relied or the information
that otherwise was furnished to us may adversely affect our opinions.
In our review, we have assumed the genuineness of all signatures, the
proper execution of all documents, the legal capacity of natural persons
executing such documents, the authenticity of all documents that we have
reviewed or on which we have relied as originals, the conformity to originals of
documents that we have reviewed or on which we have relied as copies, and the
authenticity of the originals from which any copies were made. We also have
assumed that the Company or any entities in which it holds, or will hold, direct
or indirect ownership interests will not take any action after the date of this
opinion letter that would alter the information upon which the opinions set
forth in this opinion letter are based.
In rendering these opinions, we have assumed that the transactions
contemplated by the Reviewed Documents will be consummated in accordance with
the terms and provisions of such documents, and that such documents accurately
reflect the material facts of such transactions. In addition, the opinions are
based on the correctness of the following specific assumptions:
(i) The Company will be operated in the proposed manner described in the
Company Charter, the Company Bylaws, and the Registration Statement,
and all terms and provisions of such agreements and documents will
be complied with by all parties thereto; and
(ii) The Company is a duly formed corporation under the laws of the State
of Minnesota.
The opinions set forth in this opinion letter are based on relevant
provisions of the Internal Revenue Code of 1986, as amended (the "CODE"), the
regulations promulgated thereunder by the United States Department of the
Treasury (the "REGULATIONS") (including temporary Regulations), and
interpretations of the foregoing as expressed in court decisions, the
legislative history, and existing administrative rulings and practices of the
Internal Revenue Service (the "IRS") (including the IRS's practices and policies
in issuing private letter rulings, which are not binding on it except with
respect to the taxpayer that receives a private letter ruling), all as of the
date hereof. It should be noted that the Code, the Regulations, and judicial
decisions and administrative interpretations of both the Code and the
Regulations are subject to change at any time and, in some circumstances, with
retroactive effect. A material change that is made after the date of this
opinion letter in any of the foregoing bases for our opinions could affect them.
American Church Mortgage Company
June 27, 2011
Page 3
It also must be noted that the qualification and taxation of the Company
as a REIT will depend upon its ability to meet annually, based on its actual
annual operating results, distribution levels, and diversity of share ownership,
the various REIT qualification requirements imposed under Sections 856 through
860 of the Code and the Regulations. No assurances can be given that the actual,
annual results of the Company for any one taxable year will satisfy all of REIT
qualification requirements under Sections 856 though 860 of the Code for such
taxable year.
Based upon and subject to the foregoing, it is our opinion that:
1. The Company has been organized in a manner that will permit it to
satisfy the requirements under Sections 856 through 860 of the Code for
qualification and taxation as a REIT for the taxable year 2011. The
Company's proposed method of operation, as described in the Prospectus,
will permit the Company to satisfy the requirements for qualification and
taxation as a REIT under Sections 856 through 860 of the Code with respect
to 2011 and subsequent taxable years. The Company's status as REIT under
the Code with respect to 2011 and each subsequent taxable year, however,
will depend upon the Company's actually satisfying the REIT requirements
of Sections 856 through 860 of the Code with respect to 2011 and each
subsequent taxable year. Thus, because the Company's satisfaction of the
requirements of Sections 856 through 860 of the Code will depend upon
future events in 2011 and each subsequent taxable year, including the
final determination of the Company's financial and operating results for
2011 and each subsequent taxable year, we cannot opine that the Company
actually will satisfy the requirements under Code Sections 856 though 860
to qualify as a REIT with respect to 2011 or any subsequent taxable year.
We will not review the annual results of the Company to determine whether
the Company actually met the REIT qualification requirements with respect
to a taxable year.
2. The discussion in the Registration Statement under the heading
"Federal Income Tax Consequences Associated with the Certificates" to the
extent that it constitutes matters of federal income tax law or legal
conclusions relating thereto, is our opinion as to the material United
States federal income tax consequences of the acquisition, ownership, and
disposition of the Certificates.
The foregoing opinions are limited to the matters specifically discussed
herein, which are the only matters to which the Company has requested our
opinions. Other than as expressly stated above, we express no opinion on any
issue relating to the Company or to any investment therein, including, except as
set forth above, the tax consequences, whether federal, state, local, or
foreign, of the acquisition, ownership, and disposition of the Certificates. We
are furnishing this opinion letter to the Company solely in connection with the
Registration Statement relating to the Certificates.
We assume no obligation to advise the Company of any changes in the
foregoing subsequent to the date of this opinion letter, and we are not
undertaking to update this opinion letter from time to time. The Company should
be aware that an opinion of counsel represents
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June 27, 2011
Page 4
only counsel's best legal judgment, that the opinion has no binding effect or
official status of any kind, and that no assurance can be given either that the
IRS may not take contrary positions or that a court considering the issues would
not hold otherwise.
We consent to the use of our name wherever it appears in the Registration
Statement with respect to the discussion of the material United States federal
income tax consequences of the acquisition, ownership, and disposition of the
Certificates and to the filing of this opinion as an exhibit to the Registration
Statement. In giving this consent, we do not admit that we are in the category
of persons whose consent is required under Section 7 of the 1933 Act, and we do
not admit that we are "experts" within the meaning of such term as used in the
1933 Act with respect to any part of the Registration Statement, including this
opinion letter as an exhibit or otherwise.
Very truly yours,
WINTHROP & WEINSTINE, P.A.
/s/Winthrop & Weinstine, P.A.