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Exhibit 8.2
1 August 2001
Ladies and Gentlemen,
FMC TRUST FINANCE S.A.R.L. LUXEMBOURG-III
FRESENIUS MEDICAL CARE CAPITAL TRUST IV
FRESENIUS MEDICAL CARE CAPITAL TRUST V
You have requested our opinion regarding certain Luxembourg tax considerations
with respect to the exchange of
- - (A) USD 225.000.000, aggregate principal amount of 7 7/8 % Senior
Subordinated Notes (the "Old 7 7/8 % Notes") that FMC Trust Finance
S.a.r.l. Luxembourg ("the Company") issued to Fresenius Medical Care
Capital Trust IV ("Trust IV") for a like principal amount of 7 7/8 %
Senior Subordinated Notes (the "New 7 7/8 % Notes"), and
- - (B) EUR 300.000.000, aggregate principal amount of 7 3/8 % Senior
Subordinated Notes (the "Old 7 3/8 % Notes", the "Old 7 7/8 % Notes" and
the "Old 7 3/8 % Notes" are collectively referred to herein as the "Old
Notes") that the Company issued to Fresenius Medical Care Capital Trust V
(collectively with Trust IV, the "Trusts"), for a like principal amount of
7 3/8 % Senior Subordinated Notes (the "New 7 3/8 % Notes", the New 7 7/8
% Notes and the New 7 3/8 % Notes are collectively referred to herein as
the "New Notes").
Each of the Trusts is a statutory business trust formed under the laws of the
State of Delaware pursuant the declaration of trust, as amended (collectively,
the "Amended Declarations") entered into between the Company, a private limited
company organized under the laws of Luxembourg (and a wholly-owned subsidiary of
Fresenius Medical Care AG (Aktiengesellschaft) ("FMC AG"), a stock corporation
organized under the laws of the Federal Republic of Germany), FMC AG and the
trustees of the Trusts.
The terms of the New Notes are identical in all material respects to the
respective terms of the Old Notes, except that (i) the New Notes will not
contain the minimum principal amount transfer restrictions, and (ii) the New
Notes will not provide for any increase in the interest rate thereon.
In connection with rendering our opinion, we have examined the Registration
Statement on Form F-4 as proposed to be filed with the SEC (the "Registration
Statement") and the form of Preliminary Prospectus as at July 31, 2001 included
therein (the "Prospectus").
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FMC Trust Finance S.a.r.l. Luxembourg
Fresenius Medical Care Capital Trust IV
Fresenius Medical Care Capital Trust V
August 1, 2001
In addition, we have assumed that all parties have the requisite power and
authority to enter into and perform all obligations thereunder. We have also
assumed that the New Notes will not differ, in any material aspect, from the
description thereof set forth in the Prospectus.
Our opinion is based on existing Luxembourg tax law, all of which is subject to
change. Any such change could affect the validity of our opinion.
On June 20, 2001, the Luxembourg taxing authorities confirmed that the Old 7 7/8
% Notes and the Old 7 3/8 % Notes qualified as debt for Luxembourg tax purposes.
As the terms of the New Notes are - except for the changes stated above -
identical to the respective Old Notes, we are of the opinion that the New Notes
qualify in the same way as debt as the Old Notes.
Therefore we hereby confirm the tax consequences set forth in the Chapter "Tax
consideration" of the Prospectus under the headings "Luxembourg" and "Proposed
EU Information Reporting/Withholding Tax Directive", which are the following,
are accurate in all material respects:
"PROPOSED EU INFORMATION REPORTING/WITHHOLDING TAX DIRECTIVE
The European Union is currently considering proposals for a new directive
regarding the taxation of savings income. A new draft directive has been
promulgated on July 18, 2001. Subject to a number of important conditions being
met, it is proposed that member states will be required to provide to the tax
authorities of another member state details of payments of interest or other
similar income paid by a person within its jurisdiction to an individual
resident, as well as to other forms of organizations such as partnerships and
trusts, in that other member state, subject to the right of certain member
states to opt instead for a withholding system for a transitional period in
relation to such payments. Luxembourg has opted to adopt a withholding system
for a period of seven years for payments made to individual beneficial owners
of securities (which may include, for example, individuals who hold interests
through forms of organizations such as partnerships and trusts, among others)
who are resident in a member state of the European Union that is different from
the member state of the issuer of the securities or the member state of any
paying agent (which could, for these purposes, include a person making payment
in respect of the securities on behalf of the issuer or on behalf of the
holder). Thus, if the directive is adopted, payments made at the latest on or
after January 1, 2004 by a Luxembourg issuer of securities or through a
Luxembourg paying agent in respect of instruments issued after March 1, 2001
could be subject to withholding tax under the directive. There can be no
assurance that the directive will be adopted as proposed or as to the final
terms of such directive.
LUXEMBOURG
The note issuer intends to treat the notes as debt for all Luxembourg tax
purposes and will report payments made on the notes in a manner consistent with
such characterization.
Under existing Luxembourg law, all payments of interest under the notes to a
holder of the notes who is not currently, and has never been, a Luxembourg
citizen or resident, will be free of withholding tax or any similar taxes of
whatsoever nature.
No income tax and capital tax will be due on interest received or profits
realized upon disposition of any notes by a holder, provided such holder is not
currently, and has never been, a Luxembourg citizen or resident, and such
holder has no permanent establishment in Luxembourg and the notes are not
effectively connected with such permanent establishment.
No net wealth tax will be due in respect of the notes and no estate or
inheritance taxes will arise in Luxembourg on the transfer of any notes by way
of gift, or on death of a holder, provided such holder is not currently, and
has never been, a Luxembourg citizen or resident, and such holder has no
permanent establishment in Luxembourg.
THE LUXEMBOURG TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A HOLDER'S PARTICULAR
SITUATION. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE TAX
CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE TRUST
PREFERRED SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL,
FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN LUXEMBOURG OR
OTHER TAX LAWS."
This opinion does not address other possible accounting and tax implications for
FMC Trust Finance S.a.r.l. Luxembourg-III resulting from the aforementioned
exchange of financial instruments.
This opinion and all future work concerning this file has been, and will be
prepared on the basis of the law, publicly available jurisprudence and the
current practice in Luxembourg. The opinions will not be updated, unless a
written request received from you. The opinions cannot be communicated to third
parties without the express written permission of KPMG. Our maximum liability
arising for any reason in relation to the services rendered under this opinion,
will be limited to ten times the amount invoiced by KPMG for these services.
Any legal dispute in relation to the above would fall exclusively under the
competence of the Luxembourg Courts.
We consent to the filing of this opinion as an exhibit to the Registration of
Statement and to the reference to our firm under the caption "Luxembourg" and
"Proposed EU Information Reporting/Withholding Tax Directive" in the Chapter
"Tax consideration" of the Prospectus forming a part thereof.
Yours sincerely,
/s/ Birgit Hoefer /s/ Roger Molitor
Partner - KPMG Tax Advisers Luxembourg Partner - KPMG Tax Advisers Luxembourg