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EXHIBIT 8.1
FORM OF OPINION OF PAUL, WEISS, RIFKIND, WHARTON & GARRISON
[LETTERHEAD OF PAUL, WEISS, RIFKIND, WHARTON & GARRISON]
(212) 373-3000
(212) 757-3990
[________], 2002
Berkshire Income Realty, Inc.
One Beacon Street, Suite 1500
Boston, Massachusetts 02108
Ladies and Gentlemen:
In connection with the offers to exchange shares of __% Series A
Cumulative Redeemable Preferred Stock (the "Preferred Shares") of Berkshire
Income Realty, Inc. (the "Company") for interests in Krupp Government Income
Trust, Krupp Government Income Trust II, Krupp Insured Mortgage Limited
Partnership, Krupp Insured Plus Limited Partnership, Krupp Insured Plus II
Limited Partnership and Krupp Insured Plus III Limited Partnership (collectively
the "Mortgage Funds"), as described in the prospectus (the "Prospectus")
contained in the Registration Statement on Form S-11 (Registration No.
333-98571) filed with the Securities and Exchange Commission (the "Commission")
on August 22, 2002, as amended (as so amended, the "Registration Statement,"
which includes the Prospectus), you have requested our opinion concerning the
federal income tax matters set forth below. All capitalized terms used herein
have their respective meanings set forth in the Prospectus unless otherwise
stated.
In rendering the opinion expressed herein, we have examined: (i) the
articles of incorporation of the Company; (ii) the Articles of Amendment and
Restatement of the Company; (iii) the Agreement of Limited Partnership of
Berkshire Income Realty-OP, L.P. (the "Operating Partnership") dated as of July
22, 2002; (iv) the Amended and Restated
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Berkshire Income Realty, Inc. 2
Agreement of Limited Partnership of the Operating Partnership, dated as of _____
__, 2002 (the "Partnership Agreement"); (v) the Waiver and Standstill Agreement,
dated as of August 22, 2002, by and among Krupp Government Income Trust, Krupp
Government Income Trust II, the Company and the Operating Partnership; and (vi)
the Registration Statement. We also have made such other investigations of fact
and law and have examined such other documents, records and instruments as we
have deemed necessary in order to enable us to render the opinion expressed
herein.
In our examination of documents, we have assumed, without independent
investigation, that (i) all documents submitted to us are authentic originals,
or if submitted as photocopies, that they faithfully reproduce the originals
thereof; (ii) all such documents have been or will be duly executed to the
extent required and each document represents the entire agreement (including
amendments) among the parties with respect to the subject matter thereto; (iii)
all representations and statements set forth in such documents are true and
correct; (iv) any representation or statement made as a belief or made "to the
knowledge of," or similarly qualified is correct and accurate without such
qualification; (v) all obligations imposed by any such documents on the parties
thereto have been or will be performed or satisfied in accordance with their
terms; and (vi) the Company, the Operating Partnership and the Mortgage Funds at
all times have been and will be organized and operated in accordance with the
terms of such documents. We have further assumed that the statements and
descriptions of the Company's, the Operating Partnership's and the Mortgage
Funds' businesses, properties and activities as described in the Registration
Statement are accurate.
For purposes of rendering the opinion expressed herein, we have assumed
the accuracy of the factual representations and covenants contained in the
letters addressed to us from (i) the Company, dated the date hereof, relating to
the classification and operation of the Company as a real estate investment
trust (a "REIT") and the organization and operation of the Operating
Partnership; (ii) each of Krupp Government Income Trust ("GIT") and Krupp
Government Income Trust II ("GIT II"), dated the date hereof and dated August
15, 2002, relating to the respective classification and operation of GIT and GIT
II as REITs; (iii) Mortgage Services Partners Limited Partnership, dated the
date hereof, relating to the operation of each of Krupp Insured Mortgage Limited
Partnership, Krupp Insured Plus II Limited Partnership and Krupp Insured Plus
III Limited Partnership; (iv) The Krupp Company Limited Partnership-IV, dated
the date hereof, relating to the operation of Krupp Insured Plus Limited
Partnership; (v) the Company and the Operating Partnership, dated August 15,
2002, relating to the classification of the Company, GIT and GIT II as REITs;
and (vi) KRF Company, L.L.C., dated August 15, 2002, relating to the
classification of the Company, GIT and GIT II as REITs.
Based upon the foregoing, and subject to the assumptions, exceptions and
qualifications set forth herein, we are of the opinion that:
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Berkshire Income Realty, Inc. 3
1. beginning with its taxable year during which the offers are
consummated, the Company will be organized in conformity with the requirements
for qualification as a REIT under the Internal Revenue Code, and its proposed
method of operation will enable it to operate in conformity with the
requirements for qualification as a REIT under the Internal Revenue Code;
2. from the date on which each of the Company, BIR GP, L.L.C. and KRF
Company, L.L.C. make their capital contributions to the Operating Partnership in
accordance with the Partnership Agreement, the Operating Partnership will be
treated for federal income tax purposes as a partnership and not as a
corporation or an association taxable as a corporation; and
3. the discussion contained in the Registration Statement under the
caption "Federal Income Tax Considerations" accurately describes the material
United States federal income tax considerations applicable to U.S. holders (as
defined therein) that exchange their Interests for, and hold for investment,
Preferred Shares of the Company. While such description summarizes material
United States federal income tax considerations applicable to certain holders of
the Company's Preferred Shares, it does not purport to discuss all United States
federal income tax considerations and our opinion is limited to those United
States federal income tax considerations specifically discussed therein.
This opinion is given as of the date hereof and is based on various
Internal Revenue Code provisions, Treasury regulations promulgated under the
Internal Revenue Code and interpretations thereof by the Internal Revenue
Service and the courts having jurisdiction over such matters, all of which are
subject to change either prospectively or retroactively. Further, any variation
or difference in the facts from those set forth in the documents referred to
above or any inaccuracy in the representations or covenants contained in the
letters referred to above may affect the conclusions stated herein. Moreover,
the Company's qualification and taxation as a REIT depends upon the Company's
ability to meet, through actual annual operating results, requirements under the
Internal Revenue Code regarding its organization, income, assets, distribution
levels and diversity of stock ownership. Because the Company's satisfaction of
these requirements will depend upon future events, no assurance can be given
that the actual results of the Company's operations for any one taxable year
will satisfy the tests necessary to qualify as or be taxed as a REIT under the
Internal Revenue Code.
This opinion is furnished by us solely for use in connection with the
Registration Statement. We hereby consent to the filing of this opinion as
EXHIBIT 8.1 to the Registration Statement and to the use of our name under the
captions "Federal Income Tax Considerations" and "Legal Matters" in the
Registration Statement. In giving this consent we do not thereby admit that we
come 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
Commission thereunder.
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Berkshire Income Realty, Inc. 4
We express no opinion as to any federal income tax issue or other
matter except those set forth above.
Very truly yours,
PAUL, WEISS, RIFKIND, WHARTON & GARRISON