[LETTERHEAD OF FOLEY & LARDNER APPEARS HERE]
EXHIBIT 8.1
December 15, 1998
Regency Centers, L.P.
Regency Realty Corporation
121 West Forsyth Street, Suite 200
Jacksonville, Florida 32202
REGENCY REALTY CORPORATION
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QUALIFICATION AS
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REAL ESTATE INVESTMENT TRUST
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Ladies and Gentlemen:
You have requested our opinions as tax counsel to Regency Centers, L.P.
(the "Partnership") and Regency Realty Corporation (the "Company") concerning
the federal income tax consequences in connection with the registration
statement on Form S-4, originally filed with the Securities and Exchange
Commission on September 18, 1998 under registration number 333-63723 (which
registration statement, as amended, is hereinafter referred to as the
"Registration Statement") and with respect to qualification of the Company as a
real estate investment trust (a "REIT") for federal income tax purposes.
Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Registration Statement.
In connection with the opinions rendered below, we have reviewed the
Registration Statement, the agreement of limited partnership of the Partnership,
the articles of incorporation and bylaws of the Company and such other documents
that we deemed relevant. The opinions expressed in this letter are based upon
certain factual representations set forth in the Registration Statement and in
certificates of officers of the Company.
Regency Centers, L.P.
December 15, 1998
Page 2
In connection with the opinions rendered below, we have assumed generally
that:
1. each of the documents referred to above has been duly authorized,
executed, and delivered; is authentic, if an original, or is accurate, if a
copy; and has not been amended;
2. during its short taxable year ended December 31, 1993 and subsequent
taxable years, the Company has operated and will continue to operate in such a
manner that makes and will continue to make the representations contained in a
certificate, dated as of the date hereof and executed by a duly appointed
officer of the Company (the "Officer's Certificate"), true for such years;
3. the Company will not make any amendments to its organizational documents
or to the organizational documents of Regency Realty Group, Inc., a Florida
corporation ("Management Company"), or the Partnership, after the date of this
opinion that would affect its qualification as a REIT for any taxable year;
4. no actions will be taken by the Company or Management Company after the
date hereof that would have the effect of altering the facts upon which the
opinion set forth below is based.
In connection with the opinions rendered below, we also have relied upon
the correctness of the factual representations contained in the Officer's
Certificate.
Based solely on the documents and assumptions set forth above and the
factual representations set forth in the Officer's Certificate, and without
further investigation, we are of the opinion that:
1. The exchange of Old Notes for New Notes in the Exchange Offer should not
be treated as an "exchange" for U.S. federal income tax purposes because the New
Notes should not be considered to differ materially in kind or extent from the
Old Notes and because the exchange will occur by operation of the terms of the
Old Notes. As a result, there should be no federal income tax consequences to
holders exchanging Old Notes for New Notes in the Exchange Offer, and a holder
will have the same adjusted basis and holding period in the New Notes as it had
in the Old Notes immediately before the exchange.
2. Interest on a Note will be taxable to a United States Holder as ordinary
income at the time it is received or accrued, depending on the holder's method
of accounting for tax purposes. A United States Holder is a beneficial owner
that is (i) a citizen or resident of the United States, (ii) a domestic
corporation, (iii) an estate the income of which is subject to United States
federal income tax without regard to its source or (iv) a trust if a court
within the United States is able to exercise primary supervision over the
administration of the trust and
Regency Centers, L.P.
December 15, 1998
Page 3
one or more United States persons have the authority to control all substantial
decisions of the trust.
3. A United States Holder's tax basis in a Note will generally be its cost.
Upon the sale or retirement of a Note, a United States Holder will generally
recognize gain or loss on the sale or retirement of a note equal to the
difference between the amount realized (not including any amounts attributable
to accrued and unpaid interest) and the holder's tax basis of the Note. Long-
term capital gain of a non-corporate United States Holder is generally subject
to a maximum tax rate of 20% in respect of property held for more than one year.
4. Under present United States federal income and estate tax law, and
subject to the discussion of backup withholding below:
(i) payments of principal and interest by the Partnership or any of its
paying agents to any holder of a Note that is a United States Alien
Holder(1) will not be subject to United States federal withholding tax if,
in the case of interest, (a) the beneficial owner of the Note does not
actually or constructively own 10% or more of the capital or profits
interest of the Partnership, (b) the beneficial owner of the Note is not a
controlled foreign corporation that is related to the Partnership through
stock ownership, and (c) either (A) the beneficial owner of the Note
certifies to the Partnership or its agent, under penalties of perjury, that
it is not a United States Holder and provides its name and address or (B) a
securities clearing organization, bank or other financial institution that
holds customers' securities in the ordinary course of its trade or business
(a "financial institution") and holds the Note certifies to the partnership
or its agent under penalties of perjury that such statement has been
received from the beneficial owner by it or by a financial institution
between it and the beneficial owner and furnishes the payor with a copy
thereof:
(ii) a United States Alien Holder of a Note will not be subject to
United States federal withholding tax on any gain realized on the sale of a
Note; and
(iii) a Note held by an individual who at death is not a citizen or
resident of the United States will not be includible in the individual's
gross estate for purposes of the United States federal estate tax as a
result of the individual's death if (a) the individual did not actually or
constructively own 10% or more of the capital or profits interest of the
Partnership and (b) the income on the Note would not have been effectively
connected with a United States trade or business of the individual at the
individual's death.
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(1) For purposes of this discussion, a "United States Alien Holder" is any
holder of a Note who is (i) a nonresident alien individual or (ii) a
foreign corporation, partnership or estate or trust, in either case
not subject to United States federal income tax on a net income basis
in respect of income or gain from a Note.
Regency Centers, L.P.
December 15, 1998
Page 4
Recently finalized Treasury regulations (the "Final Withholding
Regulations"), that are generally effective with respect to payments after
December 31, 1999, would provide alternative methods for satisfying the
certification requirement described in clause (i)(c) above. The Final
Withholding Regulations also would require in the case of Notes held by a
foreign partnership, that (x) the certification described in clause (i)(c) above
be provided by the partners rather than by the foreign partnership and (y) the
partnership provide certain information, including a United States taxpayer
identification number. A look-through rule would apply in the case of tiered
partnerships.
5. In general, information reporting requirements will apply to payments of
principal and interest on a Note and the proceeds of the sale of a Note before
maturity within the United States to non-corporate United States Holders, and
"backup withholding" at a rate of 31% will apply to such payments if the United
States Holder fails to provide an accurate taxpayer identification number or is
notified by the IRS that it has failed to report all interest and dividends
required to be shown on its federal income tax returns.
6. Under current law, information reporting on IRS Form 1099 and backup
withholding will not apply to payments of principal and interest made by the
Partnership or a paying agent to a United States Alien Holder on a Note;
provided, the certification described in clause (i)(c) under paragraph 4 above
is received and provided further that the payor does not have actual knowledge
that the holder is a United States person. The partnership or a paying agent,
however, may report (on IRS Form 1042S) payments of interest on Notes.
7. Payments of the proceeds from the sale by a United States Alien Holder
of a Note made to or through a foreign office of a broker will not be subject to
information reporting or backup withholding, except that if the broker is (i) a
United States person, (ii) a controlled foreign corporation for United States
tax purposes, (iii) a foreign person 50% or more of whose gross income is
effectively connected with a United States trade or business for a specified
three-year period or (iv) with respect to payments made after December 31, 1999,
a foreign partnership, if at any time during its tax year one or more of its
partners are U.S. persons (as defined in U.S. Treasury regulations) who in the
aggregate hold more than 50% of the income or capital interest in the
partnership or if, at any time during its tax year, such foreign partnership is
engaged in a United States trade or business, information reporting may apply to
such payments. Payments of the proceeds from the sale of a Note to or through
the United States office of a broker is subject to information reporting and
backup withholding unless the holder of beneficial owner certifies as to its
non-United States status or otherwise establishes an exemption from information
reporting and backup withholding.
Regency Centers, L.P.
December 15, 1998
Page 5
8. The Company has qualified to be taxed as a REIT pursuant to sections 856
through 860 of the Internal Revenue Code of 1986, as amended (the "Code"), for
its taxable years ended December 31, 1993 through December 31, 1997, and the
Company's organization and current and proposed method of operation has enabled
it and will continue to enable it to continue to satisfy the requirements for
qualification as a REIT provided the Company meets and continues to meet the
asset composition, source of income, shareholder diversification, distributions
and other requirements of the Code necessary for the Company to qualify as a
REIT. We have performed no due diligence and have made no efforts to verify the
accuracy and genuineness of the documents and assumptions set forth above, and
the representations set forth in the Officer's Certificate. We will not review
on a continuing basis the Company's compliance with such documents, assumptions
or representations. Accordingly, no assurance can be given that the actual
results of the Company's operations for its 1998 and subsequent taxable years
will satisfy the requirements for qualification and taxation as a REIT.
This opinion does not purport to deal with all aspects of taxation that may
be relevant to particular investors in light of their personal investment or
tax circumstances, or to certain types of holders (including insurance
companies, tax-exempt organizations, financial institutions or brokers-dealers,
foreign corporations, persons who are not citizens or residents of the United
States, persons who own Notes as part of a conversion transaction, as part of a
hedging transaction or as a position in a straddle for tax purposes and persons
who own 10% or more of the stock of Regency) subject to special treatment under
the federal income tax laws. This opinion does not give a detailed discussion of
any state, local or foreign tax consideration.
The foregoing opinions are based on current provisions of the Code and the
Treasury regulations thereunder (the "Regulations"), published administrative
interpretations thereof, and published court decisions, all of which are subject
to change either prospectively or retroactively. The Internal Revenue Service
has not 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 the Company
from qualifying as a REIT or that may change the other legal conclusions stated
herein.
The foregoing opinion is limited to the U.S. federal income tax matters
addressed herein, and no other opinions are rendered with respect to other
federal tax matters or to any issues arising under the tax laws of any other
country, or any state or locality. We undertake no obligation to update the
opinion expressed herein after the date of this letter.
We hereby consent to the inclusion of this opinion as Exhibit 8.1 in said
Registration Statement and to the reference to this firm under the captions
"Federal Income Tax Consequences" and "Legal Matters" in the Prospectus. In
giving this consent we do not hereby 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 or regulations of the Securities and Exchange
Commission promulgated thereunder.
Sincerely,
FOLEY & LARDNER