Exhibit 2
Tax Opinion
ROBISON, HILL & CO.
January 4, 1996
Far West Capital, Inc.
General Partner
Far West Electric Energy Fund, L.P.
(formerly Far West Hydroelectric Fund Ltd.)
Salt Lake City, Utah
Gentlemen:
You have requested that we provide you with an explanation of the
limited partners, tax consequences of the purchase and sale
agreement between Far West Capital, Inc. (IIFWCII); Far West
Electric Energy Fund, L.P. (the "Fund"); 1-A Enterprises (111-All);
U.S. Envirosystems, Inc. ("USE") and Steamboat Envirosystems, L.C.
("SBEII) . The following is our explanation of the tax consequences
to the limited partners of the Fund.
FEDERAL INCOME TAX CONSEQUENCES
General Considerations
This description of certain federal income tax consequences of the
proposed sale of the assets of the Fund is included solely for the
information of the limited partners. No information is provided
with respect to the consequences of any applicable state, local or
foreign tax laws. Applicability of the minimum tax and other tax
consequences of the proposed sale to a Limited Partner may depend
upon the individual situation of the Partner. Therefore, each
Partner is urged to consult his or her own tax adviser concerning
the specific tax consequences of the proposed sale to such Partner.
The following summary of the major income tax consequences of the
proposed sale is based, with respect to U.S. tax consequences, on
the pertinent provisions of the Internal Revenue Code of 1986, as
amended (the "Code"), the applicable regulations promulgated by the
Treasury Department under the Code (the "Regulations"), Each
Partner of the Fund should be aware that the Code, the Regulations
and interpretations are subject to change and that such changes may
be given retroactive effect.
The Revenue Reconciliation Act of 1990 (the 111990 Act") changes
the tax rates imposed upon individuals commencing January 1, 1991.
The new tax law imposes a 36% marginal tax rate plus a surtax
resulting in 39.6% rate rather than a generally imposed 28%
marginal tax bracket on individual taxpayers, increases the
alternative minimum tax rate to 24% (rather than the previous rate
of 21%), and phases out personal exemptions and itemized deductions
for persons with substantial income. The 1990 Act also limits the
tax rate on long-term capital gains to 28% The 1990 Act itself does
not have an effect upon the opinion of the Tax Advisor items (a)
through (g) set forth below, but owners of limited partnership
units should be aware that the changes set forth in the 1990 Act
could have an effect on the rates imposed on the taxpayer.
The Partners in the Fund are variously; corporations, individuals,
partnerships and nominees. Each type of entity may be taxed at
different rates or be taxed based on different sections of the Code
or Regulations. It is not feasible to comment on all of the
federal income tax consequences of the proposed sale. This summary
has been prepared based on the opinion of the Fund's tax advisor,
the Code, and the Regulations as now in effect and the current
judicial and administrative interpretations thereof. There can be
no assurance that the Internal Revenue Service will agree with the
interpretations of the Code and the Regulations set forth below.
The following summary does not include any discussion with respect
to the consequences of the proposed sale under state and local
taxation laws and regulations.
Taxation of Partnership in General
The partnership is not subject to federal income tax, it is an
entity which income or loss "flows through" to partners who are
taxable in their individual capacities on their distributive shares
of partnership taxable income. However, the partnership is a tax
reporting entity that must make an annual return of partnership
income or loss. Each partner is required to treat partnership
items on its return in a manner consistent with the treatment of
such items on the partnership return and may be penalized for
intentional disregard of the consistency requirement (Code Sec.
6222). The consistency requirement may be waived if the partner
files a statement (Form 8082) identifying the inconsistency or
shows that it resulted from an incorrect schedule furnished by the
partnership.
A partner's distributive share of income, gain, losses, deductions
or credits is generally determined by the partnership agreement.
Allocations of any partnership item under the partnership agreement
must have substantial economic effect. If a partnership agreement
does not provide for the allocation of partnership items or if
partnership allocations lack substantial economic effect, the
partner's distributive share is determined in accordance with its
interest in the partnership (Code Sec. 704(a) and (b); Reg.
1.704-1(b)).
In determining tax, each partner must account separately for its
distributive share of the following partnership items (Code Sec.
702): (1) short-term capital gains and losses, (2) long-term
capital gains and losses, (3) gains and losses from sales or
exchanges of property used in a trade or business or subject to
involuntary conversion, (4) charitable contributions, (5) dividends
for which there is a dividends-received deduction, (6) taxes paid
or accrued to foreign countries and to U.S. possessions, (7)
taxable income or loss, exclusive of items requiring separate
computation, and (8) other items required to be stated separately
either by Reg. 1.702-1 or because separate statement could affect
the income tax liability of any partner, including the following:
recovery of bad debts, prior taxes, and delinquency amounts,
deductible investment expenses, intangible drilling and development
costs, alternative minimum tax adjustments and tax preference
items, investment tax credit recapture, recapture of mining
exploration expenditures, cost of recovery property being currently
expensed, investment interest, any items subject to a special
allocation under the partnership agreement.
Most elections affecting the computation of income derived from a
partnership must be made by the partnership. Thus, elections as to
methods of accounting, methods of computing depreciation, the
nonuse of the installment sales provision, the option to expense
intangible drilling and development costs, etc. , must be made by
the partnership and must apply to all partners, insofar as the
partnership transactions are concerned (Reg. 1.703i(b)).
Individual partners must make the elections to (1) use as a credit
or as a deduction their distributive shares of foreign taxes of the
partnership, (2) deduct or capitalize their shares of the
partnership's mining exploration expenditures, and (3) reduce basis
in connection with discharge of indebtedness under Code Sec. 108.
In an administrative or judicial proceeding concerning partnership
items, the determination of the tax treatment of partnership items
is made at the partnership level in a single administrative
partnership proceeding, rather than in separate proceedings with
the partners. Special rules govern proceedings that must be
conducted at the partnership level for the assessment and
collection of tax deficiencies or for tax refunds arising out of
the partner's distributive shares of income, deductions, credits,
etc. (Code Secs. 6221-6233).
A partner is generally not taxed on distribution of cash or
property received from the partnership, except to the extent that
any money distributed exceeds the partner's adjusted basis in its
partnership interest immediately before the distribution (Code
Section 706(a)).
Each partner generally must account for its distributive share of
partnership taxable income in computing its income tax; thus,
the basis in its partnership interest is increased by its
distributive share of partnership taxable income. It is this basis
increase that generally allows distributions of taxable income to
be made without recognition of gain, since the basis increase
generally offsets corresponding decreases in basis that result from
such distributions (Code Secs. 705 and 731(a)).
Deductibility of Partnership Losses
The benefit of the net operating loss deduction is not allowed to
the partnership, but only to the partners. For purposes of
determining its individual net operating loss, each partner takes
into account its distributive share of income, gain, losses,
deductions, or credits of the partnership as if each item were
realized directly from the source from which realized by the
partnership, or incurred in the same manner as incurred by the
partnership (Reg. 1.702-2).
There are three commonly encountered limitations on a partner's
ability to take into account its share of a partnership's loss in
computing its individual tax liability. A partner is entitled to
deduct its share of the partnership's loss only after satisfying
all three of these rules. First, since the adoption of the 1954
Code through the present, the partnership taxation rules have
limited a partner's deductible share of losses to its basis in its
partnership interest. Second, since 1976, the at-risk rules have
limited a partner's deduction for its share of losses to the amount
it is considered to be economically at-risk in the venture. Third,
beginning with the effective date of the Tax reform Act of 1986, if
a partner's share of the partnership's losses are considered
"passive losses,,' the partner must combine them with its passive
losses from other sources and is allowed to deduct the total only
to the extent of its passive income from all sources.
The amount of partnership loss (including capital loss) that may be
allowed to a partner is limited to the amount of the adjusted basis
(before reduction by the current year's loss) of its interest in
the partnership at the end of the partnership tax year in which the
loss occurred. The disallowed loss is carried forward to and may
be deducted by the partner in subsequent partnership tax years (to
the extent that the basis exceeds zero before deducting the loss)
(Reg. 1.704-1(d)).
Partners are subject to the at-risk rules. The amount of losses
deductible by a partner is limited to the amounts at risk in the
activity, which does not include any portion of a partnership
liability for which the partner has no personal liability. The at
risk loss limitation rules are applied before taking into account
the basis limitation for partners, losses or computing any passive
activity loss for the year.
The passive activity loss limitations apply to the partner level to
each partner's share of any loss or credit attributable to a
passive activity of the partnership. A partnership must report
separately a partner's share of income or losses and credits from
each (1) trade or business activity, (2) rental real estate
activity, and (3) rental activity other than rental real estate.
A partnership's portfolio income, which is excluded from passive
income, must also be separately reported.
Generally, a passive activity of a partner is (1) a trade or
business activity in which the partner does not materially
participate, or (2) any rental activity. Except as provided in
Temporary Reg. 1.469-ST(e)(2), an interest in an activity as a
limited partner in a limited partnership is not one in which the
partner materially participates. A limited partnership interest is
thus considered to be an interest in a passive activity subject to
the limits on passive losses. Thus, in any one taxable year,
passive activity expenses can be deducted only to the extent of the
taxpayer's passive activity income.
Losses that are disallowed due to any of these three limitations
are deductible in the year of the termination of a partnership
interest.
Capital Gain or Loss
Although the sale of a partnership interest generally gives rise to
capital gain or loss, amounts received by a partner allocable to
its share of unrealized receivables or substantially appreciated
inventory constitute ordinary income or loss whether the gain
results from a sale to nonpartners or to other partners. The term
"unrealized receivables" includes any rights to income that have
not been included in gross income under the method of accounting
employed by the partnership (Reg. 1.751-1(c)). For the most part,
the classification relates to cash-basis partnerships and in the
usual case, the term does not apply to an accrual-basis partnership
because it has already included unrealized receivables in gross
income. The term "unrealized receivable" also includes certain
property to the extent of the amount of gain that would have been
realized and treated as ordinary income (under Code Secs. 617, 995,
1245, 1248, 1250-1254) by the partnership if it had sold the
property at its fair market value at the time of the sale or
exchange of the partnership being considered.
A decrease in a partner's share of partnership liabilities is
treated as a distribution of money by the partnership, which
decreases the distributes partner's basis in its partnership
interest (but not below zero) (Code Secs. 733 and 752(b)). When a
partner's basis has been reduced to zero, such "deemed
distributions" can result in the recognition of gain.
Partners, shares of partnership liabilities (and corresponding
allocations of basis) depend upon whether the liability is
"recourse" or "nonrecourse.11 In addition, separate rules apply in
the case of nonrecourse debts of the partnership if a partner is
the lender or has guaranteed repayment of the debt. A limited
partner cannot be allocated recourse liabilities in excess of its
capital contribution unless it has agreed to restore any def icit
in its capital account. Article VIII of the partnership agreement
states that the "Units are not subject to assessment. 11
Nonrecourse liabilities are those for which no partner bears the
economic risk of loss.
The amount realized from a sale or other disposition of property
includes the amount of liabilities from which the transferor is
discharged as a result of the sale or disposition except:
(1) The amount realized on a sale or other disposition of property
that secures a recourse liability does not include amounts
that are income from the discharge of indebtedness under Code Sec
61(a)(12), or
(2) In the case of a liability incurred by reason of the
acquisition of the property, the liability is not included in the
amount realized to the extent that such liability was not taken
into account in determining the transferor's basis for such
property (Reg. 1.1001-2(a)).
Cancellation of Indebtedness
Cancellation of indebtedness usually results in taxable income and
increases earnings and profits. However, where the creditor's
adjusted basis in the debt is at least equal to the principal
amount of the debt forgiven, the forgiveness of debt by a creditor
shareholder may be a capital contribution that doesn't increase
earnings and profits. But, in the absence of evidence indicating
an intent to make a capital contribution, the cancellation of
indebtedness increases earnings and profits (Rev. RU1. 58-546).
Termination of Partnership
The tax year of the partnership closes if there has been a
termination of the partnership. Article XVII (ii) of the
Certificate and Agreement of Limited Partnership states that the
sale of substantially all the assets of the Partnership shall work
an immediate dissolution of the Partnership. Article XVIII states
that the "holders of the Units shall continue to share profits and
or losses during the period of liquidation in the same proportion
as before the dissolution. Upon the completion of the liquidation
of the partnership, the partnership must file a short-period return
for the resulting short tax year. Code Section 708 provides that
termination occurs only if the business activities of the
partnership are no longer carried on by any of the partners or that
at least one-half of the total interest in partnership capital and
profits is sold within a 12-month period. Such sale or exchange
includes a sale or exchange to another member of the partnership
and the exchange of the interest in one partnership for an interest
in another partnership (or limited liability company). A
partnership is considered a continuing entity and observes its
regular tax year unless it is terminated under the rules above,
accordingly, the dissolution or liquidation of the partnership
under state law does not necessarily cause a partnership's tax year
to close (Reg. 1.706-1(c)).
Effect of Liquidation
In the case of a liquidating partnership, a relatively simple set
of rules governs the distributee's gain, loss, and basis in
distributed assets, if there are no disproportionate distributions
of unrealized receivables and substantially appreciated inventory
items. There are no tax consequences to the partnership.
If unrealized receivables and substantially appreciated inventory
are not distributed, a liquidation results in gain only to the
extent that a partner receives money in excess of its partnership
interest's adjusted basis (Code Sec. 731(a)). Liquidating
distributions always involve a complete termination of
liability for any share of partnership debt because the
partnership
ceases to exist. The termination of partnership requires that
decreases in the partner's share of partnership liabilities be
netted with any liabilities the partner takes over from the
partnership (Reg. 1.752-1(f)). Net debt relief is treated as
additional money received (Code Sec. 752 (b) and Reg. 1.752-1(f)).
If a partner takes over only its pro rata share of the partnership
debt, there will be no deemed cash receipt or payment.
A loss may be recognized when only one or more of three types of
assets, and no other property, are distributed in the
liquidation. If the liquidated partner receives only cash,
inventory, and/or unrealized receivables and their bases to the
partnership are less than its basis in its partnership interest, it
is allowed to deduct the difference as a capital loss (Code Sec.
731(a)(2)).
The sale or exchange of a partnership interest is generally treated
as the sale of a single capital asset and not as the sale of a
partner's proportionate interest in each asset of the partnership
(Code Sec. 741). Capital gain or loss, as measured by the
difference between the amount realized and the adjusted basis of
the partnership interest, will result from the sale. If the
selling partner has a basis of zero and a deficit-capital account,
it also realizes additional capital gain to the extent that it has
been relieved of its obligation to repay the deficit.
AS is the situation with most sales of property, the amount
realized by the transferor partner equals the amount of cash and
the fair market value of any property received by it plus debt
relief (Regs. 1.1001-1(a)(1) and 1.1001-2(a)(1)). In the case of
sales of partnership interests, debt relief takes the form of a
decreased share of partnership liabilities (Reg. 1.10012 (a) (4)
(v) ) . An increase or a decrease in a partner Is share of the
partnership's liabilities is treated as a deemed money contribution
and distribution, respectively (Code Secs. 752(a) and 752(b)).
Deemed money contributions increase a partner's basis in its
interest (Code Sec. 722). Deemed distributions decrease its basis
in its interest to zero. Excess deemed distributions, ie., those
made after a partner's basis in its partnership interest has been
reduced to zero, are treated as taxable gain (Code Secs. 733(l) and
731(a)(1)). The limited partners of the Fund are not liable for
any of the partnership debt beyond the amount of their capital
account. Since the limited partners have negative capital accounts
none of the debt relief (if any) is attributable to the limited
partners.
Partner's Cost Basis
A partner's basis in its partnership interest must be adjusted
periodically to ensure that the partnership remains a conduit for
tax purposes. Income and deductions are to be taxed only once
(Code Sec. 701). Tax-exempt income, nondeductible expenditures,
and distributions made from previously taxed income and
contributions are not to be taken into account in computing tax
liability at all.
The transferor partner's adjusted basis in its partnership interest
at the time of the transfer is the sum of its basis on the day it
acquired its interest plus adjustments reflecting operations during
its holding period. The calculation of a partner's initial basis
varies according to whether it acquired its interest through a
contribution to the partnership or by transfer from another partner
(Code Sec. 742 and Reg.1.742-1). A partner has to determine the
adjusted basis of its interest in a partnership whenever it is
necessary for the determination of its tax liability, or that of
any other person. Ordinarily the determination is made as of the
end of the partnership's taxable year. However, where there has
been a sale of all or part of a partnership interest or a
liquidation of a partner's entire interest, the adjusted basis is
determined as of the date of sale or exchange or liquidation (Reg.
1.705-1(a)(1)).
The original basis of a partner's interest is the amount of money
and the adjusted basis of property contributed to a partnership
when the partnership interest is acquired (Code Secs. 705(a) and
722). This basis is increased by any further capital contributions
and by the sum of the partner's distributive share of:
(1) taxable income of the partnership,
(2) tax-exempt receipts of the partnership, and
(3) the excess of depletion deductions over basis of the
depletable property.
Code Sec. 705(a)(1) and Reg. 1.705-1(a)(2).
The basis is decreased (but not below zero) by distributions from
the partnership as provided under Code Sec. 733, and by the sum of
the partner's distributive share of:
(1) partnership losses, including capital losses (Code Sec.
705(a)(2)(A)),
(2) nondeductible partnership expenditures which are not capital
expenditures (Code Sec. 705 (a) (2) and Reg. 1. 705l(a)(3)),
(3) the amount of the partner's deduction for depletion for
partnership oil and gas property to the extent the deduction does
not exceed the partner's share of the adjusted basis of the
property (Code Sec. 705(a)(3) and Reg. 1.705-1(a)(4), and
(4) loss from the disposition by the partnership of a domestic oil
or gas property (Reg. 1.705-1(a)(5)).
in all cases when downward adjustments to basis are required, the
statute expressly provides that basis is not to be reduced below
zero (Code Sec. 705(b)). A basis in a partnership interest never
has a value below zero. While a negative capital account is very
common, a negative basis is impossible.
Calculation of Individual Partner Per Unit Cost Basis
Based on the information provided from the Schedule K of Form 1065
as was filed by the Partnership, a per unit basis of original
issued units would be:
10,000 units issued at $1,000 per unit.
Cash Sched.K Cumulative Cum-
Distri- Income Suspended Culative
bution (Loss) Loss Basis
Initial
Purchase $ - $ - $ - $1,000
1985
(Business
credit
$279) - (28) - 972
1986
(Business
credit
$20) - (368) - 604
1987 31 (374) - 199
1988 22 (420) (243) -
1989 - (366) (609) -
1990 - (297) (906) -
1991 - (6) (912) -
1992 - 325 (587) -
1993 - 125 (462) -
1994 - 58 (404) -
1995 (Projected
without Sale
of SB-1) - 114 (290) -
Projected Sale of
SB-1 44 559 - 225
The preceding table assumes that the limited partner is an
individual and was unable to deduct some of the losses at the times
they were incurred either because of the basis limitations or the
passive loss limitations. In summary, assuming that the partner
was able to utilize the Business credit, the partner should have
received a tax benefit of $299 for the Business credit, received
non-taxable cash distributions of $97, will have ordinary income of
$269 (net of suspended losses and assuming that the proposed sale
is completed during 1995) and will be able to deduct the remaining
basis as a capital loss of $225. Each limited partner's situation
may vary from the above assumptions, accordingly, partners are
encouraged to consult their own tax advisers.
The Partnership elected to reduce basis of property for which the
energy credit was claimed by 50% of the energy credit (Code Sec.
50). The reduced basis was used in determining depreciation and
gain on the disposition of property. In the event that a partner
did not realize a tax benefit from the investment credit for which
a downward basis adjustment was made, a deduction is allowed under
Code Sec. 196 to the taxpayer for 50% of the unused energy credit
attributable to the basis reduction.
The Code also imposes an alternative minimum tax and excise taxes
on certain types of transactions. Applicability of such taxes is
usually controlled, in whole or part, by other matters unrelated to
the Proposed Sale or by unique characteristics of the particular
taxpayer. Accordingly, partners are encouraged to consult their
tax advisers if they are or might be subject to such taxes.
Tax Shelter Consideration
The IRS may determine that the partnership is a tax shelter. Tax
shelters are treated as shams where the two-pronged test shows
that: (a) the transaction was entered into primarily for tax
avoidance, and (b) there was no reasonable possibility of profit
from the transaction, i.e., there was no economic substance.
Where a transaction contains the characteristics listed below, The
Tax Court treats the transaction as one entered into primarily, if
not solely, for tax avoidance under test (a), above and refers to
it as a "generic" tax shelter. Moreover, a "generic tax shelter is
treated as a sham where it is also found to have had no economic
substance (test (b), above) other than tax benefits (Rose, James,
(1987) 88 TC 386, affd on this issue (1989, CA6) 63 AFTR 2d 89-776,
868 F2d 851, 89-1 USTC 9191). The Tax Court's enumerated
characteristics common to "generic" tax shelters are: (1) tax
benefits are the focus of the promotional material, (2) investors
do not negotiate price, (3) assets involved consist of "rights"
difficult to value and substantially overvalued in relation to
tangible property involved, (4) the tangible property is created or
acquired for little cost shortly before the transactions, and (5)
most of the consideration is deferred by promissory notes,
nonrecourse in form or substance. For purposes of the tax shelter
rule, the requisite profit motive is determined at the partnership
level, as reflected by the motives and objectives of the promoters
and general partners of the partnership. Factors examined include:
experience and knowledge of the promoter, whether tax benefits are
the focus of marketing, whether advanced royalty payments are
disproportionate, whether reasonable efforts are made to engage in
the activity, and whether the property that was the basis for the
venture was overvalued. As of now the only significant tax benefit
for the limited partners is approximately $300 business investment
tax credit (per unit) which was available to investors during 1985
and 1986. Due to at-risk limitations it is possible that many of
the limited partners were not able to use the business tax credit.
It would appear that there have not been significant tax benefits
generated by the partnership.
opinion of Tax Advisor
In our opinion if the sale occurs as set forth in the Purchase and
Sale Agreement and as described herein, it is more likely than not:
(a) The proposed sale will result in dissolution of the
partnership under Article XVII (ii) of the Certificate and
Agreement of Limited Partnership of Far West Hydroelectric Fund
Ltd.
(b) Any cash received by the Limited Partners of the Fund will be
treated as having been received in redemption of the limited
partner units so cashed out, and will result in taxable gain or
loss. The amount of such gain or loss will be the difference
between the cash received and the basis of the units surrendered in
exchange thereof.
(c) The partnership is not a "generic" tax shelter under the
two-pronged test and loss if any will be allowed.
(d) The $100,000 cancellation of indebtedness from First Security
Bank will result in taxable income and increase earnings and
profits to the Partnership.
(e) The debt to FWC will be transferred to equity in the new
entity and is not forgiveness of debt and should not be recognized
as a distribution of money by the partnership to the limited
partners.
(f) Partners that did not receive tax benefits from the
energy tax credit are entitled to 50% of the basis
reduction as a
credit on their income tax return.
(g) Because the Partnership records income on an accrual
basis for tax purposes there will not be any unrealized
receivables
or appreciated inventory sold that should be recognized as ordinary
income.
An opinion of a tax practitioner is not binding upon the IRS or the
Courts. It is uncertain whether the IRS would issue a
favorable ruling on the Proposed Sale. An opinion of Tax Advisors
does not provide the same degree of assurance with respect to the
consequences of a transaction as would a private letter ruling from
the IRS. The Tax Advisor's opinion is subject to a number of
assumptions and qualifications that are critical to the opinion and
is based on certain factual assumptions, and upon certain
representations and assurances made by FWC, the Fund, USE and SBE.
if such factual information or the representations, warranties, or
assumptions are not true when made or subsequently change, the Tax
Advisor's opinion may be inapplicable. Robison, Hill & Co. has
expressed no opinion concerning the consequences of the proposed
sale on the Limited Partners under applicable state or local income
tax laws.
The preceding is intended to be only a summary of income tax
consequences relating to the Proposed Sale. LIMITED PARTNERS OF
FAR WEST ELECTRIC ENERGY FUND, L.P. SHOULD CONSULT THEIR OWN TAX
ADVISORS WITH RESPECT TO ISSUES NOT COVERED BY THE OPINION OR
REGARDING THEIR OWN PARTICULAR CIRCUMSTANCES.
Respectfully submitted,
Robison Hill & Company
Public Accountants
Salt Lake City, Utah