EXHIBIT 8.1
October 10, 1996
Resource Mortgage Capital, Inc.
4880 Cox Road
Glen Allen, Virginia 23060
Re: Tax Opinion
Ladies and Gentlemen:
We have acted as counsel to Resource Mortgage Capital, Inc. ("RMC")
in connection with the preparation of a registration statement (the
"Registration Statement") to be filed with the Securities and Exchange
Commission with respect to an offering of shares of RMC's convertible preferred
stock. You have requested our opinion regarding RMC's qualification as a real
estate investment trust ("REIT") pursuant to sections 856 through 860 of the
Internal Revenue Code of 1986, as amended (the "Code"), for its 1995 taxable
year. Unless otherwise stated, all section references herein are to the Code.
In addition, you have requested our opinion with respect to whether RMC's
organization and contemplated method of operations are such as to enable it to
continue to qualify as a REIT for its 1996 taxable year and subsequent taxable
years.
RMC has a number of wholly-owned subsidiaries ("qualified REIT
subsidiaries"), the income, liabilities, and assets of which are consolidated
with those of RMC for federal income tax purposes. This letter refers to RMC,
together with such subsidiaries, as "Consolidated RMC." In connection with the
opinions rendered below, we have examined the following:
1. The Articles of Incorporation of RMC, as amended on August 17,
1994 and the Articles of Amendment establishing the Series C convertible
preferred stock;
2. The bylaws of RMC as restated on June 22, 1992;
3. Consolidated RMC's federal income tax returns for its taxable
years 1994 and 1995; and
4. The prospectus included in the registration statement with which
this letter has been filed.
In connection with the opinions rendered below, we have assumed that:
1. Each of the documents referred to above has been duly
authorized, executed, and delivered, is authentic, if an original, or accurate,
if a copy, and has not been amended;
2. During Consolidated RMC's 1996 taxable year and subsequent
taxable years, it will continue to conduct its affairs in a manner that will
make the representations set forth below true for such years;
3. Neither RMC nor any subsidiary of RMC will make any amendments
to its organizational documents after the date of this opinion that would
affect Consolidated RMC's qualification as a REIT for any taxable year; and
4. No actions will be taken by Consolidated RMC or any subsidiary
of RMC after the date hereof that would have the effect of altering the facts
upon which the opinions set forth below are based.
Furthermore, we have relied upon the correctness of the following
representations of Consolidated RMC and its authorized representatives that, at
all times relevant hereto:
1. Neither RMC nor any subsidiary thereof has ever been subject by
law to the supervision or examination by state, or federal authorities having
supervision over banking institutions.
2. Neither RMC nor any subsidiary thereof has ever been a savings
institution chartered or supervised as a savings and loan or similar
association under federal or state law.
3. Neither RMC nor any subsidiary thereof has ever been a small
business investment company operating under the Small Business Investment Act
of 1958.
4. Neither RMC nor any subsidiary thereof was created by or
pursuant to an act of a state legislature for purposes of promoting,
maintaining, and assisting the economy and industry within a state on a
regional or state-wide basis by making loans to be used in trades or businesses
which would generally not be made by banks within such region or state in the
ordinary course of business.
5. Neither RMC nor any subsidiary thereof was an insurance company
to which Subchapter L of the Code applies.
6. Beneficial ownership of the shares of RMC (the "Shares") was
held by 100 or more persons.
7. At no time during the last half of any taxable year was more
than 50% in value of the outstanding stock of RMC owned, directly or
indirectly, by or for not more than five individuals. For this purpose, the
Shares are treated as owned indirectly by or for an individual if such
individual would be treated as owning such Shares under section 544 as modified
by section 856(h)(1)(B).
8. Consolidated RMC's election to be treated as a REIT was properly
made and has not been terminated or revoked.
9. At the close of each quarter of each taxable year seventy-five
percent (75%) or more of the value of Consolidated RMC's total assets consisted
of cash and cash items (including receivables arising in the ordinary course of
Consolidated RMC's operations), government securities, and real estate assets
(including interests in real property, interests in mortgages on real property,
and interests in REMICs to the extent provided in section 856(c)(6)(E)), and
shares or transferable certificates of beneficial interest in other qualified
REITs) (the "75% test").
10. With respect to any consumer installment loans on manufactured
housing, which are assets of Consolidated RMC as described in paragraph 9
immediately above, that the associated manufactured housing units are secured
to a site and are inherently permanent structures.
11. Not more than five percent (5%) of the value of Consolidated
RMC's total assets consisted of securities of any one issuer (if such
securities are not includable under the 75% test), and Consolidated RMC owned
not more than ten percent (10%) of the outstanding voting securities of any one
issuer (if such securities are not includable under the 75% test).
12. Consolidated RMC did not receive or accrue any rents from either
real or personal property.
13. Consolidated RMC did not receive or accrue as income, directly
or indirectly, any interest or other amount determined in whole or in part with
reference to the income or profits derived by any person (excluding interest
(A) based solely on a fixed percentage or percentages of receipts or sales or
(B) to the extent described in section 856(f)(2) of the Code).
14. Consolidated RMC did not own any mortgage whose terms entitled
it to receive a specified portion of any gain realized on the sale or exchange
of the real property securing the mortgage or any gain that would be realized
if such property were sold on a specified date.
15. At least seventy-five percent (75%) of Consolidated RMC's gross
income (excluding gross income from prohibited transactions) for any taxable
year was derived from:
(a) interest on obligations secured by mortgages (including
consumer installment loans on manufactured housing) on real property or on
interests in real property,
(b) gain from the sale or other disposition of real property
(including interests in real property and interests in mortgages on real
property) which was not held as inventory or primarily for sale to customers in
the ordinary course of its trade or business,
(c) dividends or other distributions on, and gain (other than
gain from prohibited transactions) from the sale or other disposition of,
transferable shares (or transferable certificates of beneficial interest) in
other REITs,
(d) abatements and refunds of taxes on real property,
(e) income and gain derived from foreclosure property,
(f) amounts (other than amounts the determination of which
depends in whole or in part on the income or profits of any person) received or
accrued as consideration for entering into agreements (i) to make loans secured
by mortgages on real property or on interests in real property, or (ii) to
purchase or lease real property (including interests in real property and
interests in mortgages on real property),
(g) gain from the sale or other disposition of real estate
assets which is not a prohibited transaction solely by reason of section
857(b)(6), and
(h) income which was attributable to stock or debt instruments
acquired through the temporary investment of new capital and received or
accrued during the one year period beginning on the date on which Consolidated
RMC received such capital.
16. At least ninety-five percent (95%) of Consolidated RMC's gross
income (excluding gross income from prohibited transactions) for any taxable
year was derived from:
(a) sources which satisfy the seventy-five percent (75%) income
test described in paragraph 14 above,
(b) dividends,
(c) interest,
(d) payments with respect to bona fide interest rate swap, cap,
or floor agreements entered into to hedge any variable interest rate
indebtedness incurred or to be incurred to acquire or carry real estate assets
("interest rate agreements"), and
(e) gain from the sale or other disposition of stocks and
securities (including interest rate agreements).
17. Less than thirty percent (30%) of Consolidated RMC's gross
income for any taxable year was derived from the sale or other disposition of:
(a) stock or securities (including interest rate agreements)
held for less than one year,
(b) property in a transaction which is a prohibited
transaction, and
(c) real property (including interests in real property and
interests in mortgages on real property) held for less than four years other
than (i) property compulsorily or involuntarily converted within the meaning of
section 1033, and (ii) property which is foreclosure property.
18. For each taxable year, the deduction for dividends paid during
the taxable year (determined without regard to capital gains dividends) equaled
or exceeded (i) the sum of ninety-five percent (95%) of Consolidated RMC's real
estate investment trust taxable income for the taxable year (determined without
regard to the deduction for dividends paid and excluding any net capital
gains), and ninety-five percent (95%) of the excess of the net income from
foreclosure property over the tax imposed on such income by section
857(b)(4)(A), minus (ii) any excess noncash income as determined under section
857(e).
19. All distributions paid by Consolidated RMC with respect to its
Shares were pro rata with no preference to any share of stock as compared to
any other shares of the same class and with no preference (other than as
required under the Amended Articles of Incorporation of RMC between its common
and preferred stock) to one class of stock as compared to another class.
20. As of the close of any taxable year, Consolidated RMC had no
earnings and profits accumulated in any non-REIT year.
21. During its taxable year 1995, RMC has had at least 2001
shareholders of record of its Shares on any dividend record date. In prior
taxable years, RMC had at least 201 shareholders of record of its Shares in any
dividend record date.
22. Within thirty (30) days after the end of each taxable year, RMC
demanded written statements from shareholders of record who at any time during
the last six (6) months of RMC's taxable year owned 5% (or 1%, as the case may
be), or more of the Shares disclosing (i) the actual owners of the Shares
(those persons required to include RMC's dividends in gross income), (ii) and
the maximum number of Shares (including the number and face value of securities
convertible into Shares) that were considered owned, directly or indirectly
(within the meaning of section 544 as modified by section 856(h)(1)(B)) by each
of the actual owners of the Shares.
23. RMC maintained the information received with respect to such
written demands in its filing district available for inspection by the Internal
Revenue Service at any time.
24. RMC maintained sufficient records to show that it complied with
the 75% test described at paragraph 9 above for all taxable years in its filing
district available for inspection by the Internal Revenue Service at any time.
25. RMC and the plan administrator under RMC's Dividend Reinvestment
and Stock Purchase Plan (the "Plan") have administered the Plan in accordance
with the terms of the prospectus describing the Plan.
26. RMC has owned all the stock of each qualified REIT subsidiary at
all times during the period of such corporation's existence.
27. During its 1996 taxable year and subsequent taxable years,
Consolidated RMC expects to continue to satisfy all of the representations
described in paragraphs 1 through 25 above.
As used herein, the term "prohibited transaction" means the sale or
other disposition of property held as inventory or primarily for sale to
customers in the ordinary course of Consolidated RMC's trade or business. The
term "foreclosure property" means any real property (including interests in
real property) and any personal property incident to such real property,
acquired by Consolidated RMC as the result of its having bid in such property
at foreclosure, or having otherwise reduced such property to ownership or
possession by agreement or process of law after there was a default (or default
was imminent) on a lease of such property or on an indebtedness which such
property secured. Such term does not include property acquired by Consolidated
RMC as a result of indebtedness arising from the sale or other disposition of
property held as inventory or for sale in the ordinary course of Consolidated
RMC's trade or business which was not originally acquired as foreclosure
property.
Based solely on the documents, assumptions, and representations set
forth above, and without further investigation, we are of the opinion that
Consolidated RMC qualified as a REIT in its 1995 taxable year and that its
organization and contemplated method of operation are such that it will
continue to so qualify for its 1996 taxable year and subsequent taxable years.
Except as described herein we have performed no further due diligence and have
made no efforts to verify the accuracy or genuineness of the documents,
assumptions, and representations set forth above.
The foregoing opinion is based on current provisions of the Code and
Treasury Regulations, published administrative interpretations thereof, and
published court decisions. The Internal Revenue Service has not yet issued
Regulations or administrative interpretations with respect to various
provisions of the Code relating to REIT qualification. No assurance can be
given that the law will not change in a way that will prevent Consolidated RMC
from qualifying as a REIT or that the Internal Revenue Service will not
disagree with this opinion.
The foregoing opinion is limited to federal income tax matters
addressed herein, and no other opinions are rendered with respect to other
federal tax matters or any issues arising under the tax laws of any state or
locality. We undertake no obligation to update this opinion after the date of
this letter. This opinion letter is solely for the information and use of the
addressee and may not be relied upon, quoted, or otherwise used for any purpose
by any other person without our express written consent.
We consent to the references to this firm in the prospectus
supplement to be filed and the prospectus filed with the Registration Statement
and to the filing of this opinion as an exhibit to the Registration Statement
in which the prospectus is and prospectus supplement will be included. We do
not thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the
rules and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
VENABLE, BAETJER AND HOWARD, LLP