EXHIBIT 8.1
February 27, 2004
Capital Auto Receivables, Inc.
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
Re: Federal Income Tax Consequences
Ladies and Gentlemen:
We are issuing this opinion letter in our capacity as special
counsel to Capital Auto Receivables, Inc. (the "Seller") and General Motors
Acceptance Corporation ("GMAC") in connection with the issuance of $553,000,000
aggregate principal amount of Class A-1 Floating Rate Asset Backed Notes,
$475,000,000 aggregate principal amount of Class A-2 1.40% Asset Backed Notes
(the "Class A-2 Notes"), $640,000,000 aggregate principal amount of Class A-3
2.00% Asset Backed Notes (the "Class A-3 Notes"), and $303,000,000 aggregate
principal amount of Class A-4 2.64% Asset Backed Notes, (the "Class A-4 Notes";
the Class A-2 Notes, the Class A-3 Notes, and the Class A-4 Notes are referred
to collectively herein as the "Offered Notes") by Capital Auto Receivables Asset
Trust 2004-1 (the "Trust"), pursuant to an Indenture (the "Indenture"), between
the Trust and JPMorgan Chase Bank, as Indenture Trustee (the "Indenture
Trustee") and $60,973,326.13 initial certificate balance of 2.84% Asset Backed
Certificates (the "Certificates") by the Trust, pursuant to a Trust Agreement
(the "Original Trust Agreement"), dated as of February 19, 2004, to be amended
and restated as of the Issuance Date (the "Trust Agreement"), between the Seller
and Deutsche Bank Trust Company Delaware, as Owner Trustee (the "Owner
Trustee"). Only the Offered Notes and the Certificates are being offered for
sale. The Seller will initially retain Certificates with an initial certificate
balance of $613,326.13.
The Trust intends to issue the Offered Notes and the Certificates on or
about March 2, 2004 (the "Issuance Date"). In arriving at the opinions expressed
below, among other things, we have examined and relied, to the extent we deem
proper, on the following documents:
(i) a copy of the registration statement filed with the
Securities Securities and Exchange Commission (the
"Commission") pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Act"), on Amendment No. 1 to Form S-3
(File No. 333-105077) on May 16, 2003 with respect to
asset-backed notes and certificates, including the Offered
Notes and the Certificates, to be issued and sold in series
from time to time, in the form in which it became effective,
including the exhibits thereto;
Capital Auto Receivables, Inc.
February 27, 2004
Page 2
(ii) a copy of a form of prospectus supplement relating to
the Offered Notes and the Certificates substantially in the
form to be filed with the Commission pursuant to Rules
424(b)(5) and 424(c) under the Act (the "Prospectus
Supplement") and the prospectus, dated February 19, 2004,
relating thereto (the "Base Prospectus" and, together with the
Prospectus Supplement, the "Prospectus");
(iii) the Original Trust Agreement and a form of the Trust
Agreement;
(iv) a form of the Trust Sale and Servicing Agreement, among
the Seller, GMAC, as Servicer, and the Trust (the "Trust Sale
and Servicing Agreement");
(v) a form of the Indenture;
(vi) a form of the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), between GMAC and the
Seller; and
(vii) such other documents as we have deemed necessary for the
expression of the opinions contained herein (collectively, the
documents described in clauses (iii) through (vi) are referred
to herein as the "Transaction Documents").
In arriving at the opinion expressed below, we have examined and
relied, to the extent we deemed proper, on the Transaction Documents. In our
examination, we have assumed that the Transaction Documents will be executed in
the form submitted to us on or before the Issuance Date, and we have assumed the
enforceability of all Transaction Documents. We have also assumed, without
independent verification, that the facts and representations and warranties in
the documents upon which we relied are true and correct, and that the
transactions contemplated by such documents will be consummated strictly in
accordance with their terms.
In rendering our opinion, we have also considered and relied upon the
Internal Revenue Code of 1986, as amended (the "Code"), administrative rulings,
judicial decisions, regulations, and such other authorities (including Treasury
regulations) as we have deemed appropriate, all as in effect on the date hereof
and all of which are subject to change or different interpretation. However, we
will not seek a tax ruling from the Internal Revenue Service (the "IRS") with
respect to any of the matters discussed herein. Moreover, the statutory
provisions, regulations, interpretations and other authorities upon which our
opinion is based are subject to change, and such changes could apply
retroactively. In addition, there can be no assurance that positions contrary to
those stated in our opinion will not be taken by the IRS. Our opinion is in no
way binding on the IRS or any court, and it is possible that the IRS or a court
could, when presented with these facts, reach a different conclusion. We express
no opinion herein as to any laws other than federal law of the United States of
America. In rendering such opinions, we have assumed
Capital Auto Receivables, Inc.
February 27, 2004
Page 3
that the Trust will be operated in accordance with the terms of the Trust
Agreement, the Trust Sale and Servicing Agreement, the Pooling and Servicing
Agreement and the Indenture.
Based on and subject to the foregoing, we are of the opinion that under
the existing tax laws of the United States of America, although no transaction
closely comparable to those contemplated herein has been the subject of any
Treasury regulation, revenue ruling, or judicial decision, for United States
federal income tax purposes:
(i) the statements in the Base Prospectus under the caption
"Federal Income Tax Consequences" and in the Prospectus
Supplement under the caption "Federal Income Tax
Consequences," to the extent that they constitute matters of
law or legal conclusions, have been prepared or reviewed by us
and are correct in all material respects;
(ii) the Offered Notes will be characterized as indebtedness;
and
(iii) the Trust will not be taxable as an association or
publicly traded partnership taxable as a corporation, but
instead will be classified as a partnership.
Except for the opinions expressed above, we express no opinion as to
any other tax consequences of the transaction to any party under federal, state,
local or foreign laws. In addition, we express no opinion as to the laws of any
jurisdiction other than the federal laws of the United States of America to the
extent specifically referred to herein. This letter is limited to the specific
issues addressed herein and the opinions rendered above are limited in all
respects to laws and facts existing on the date hereof. By rendering these
opinions, we do not undertake to advise you with respect to any other matter or
of any change in such laws or facts or in the interpretations of such laws which
may occur after the date hereof or as to any future action that may become
necessary to maintain the character of the Offered Notes as indebtedness or the
Trust as a partnership for federal income tax purposes.
We hereby consent to the filing of this opinion with Form 8-K in
connection with the sale of the Offered Notes and the Certificates and to the
reference to our firm in the Base Prospectus under the captions "Federal Income
Tax Consequences" and "Legal Opinions" and in the Prospectus Supplement under
the captions "Tax Status" in the Summary, "Federal Income Tax Consequences" and
"Legal Opinions." 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
Act or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
KIRKLAND & ELLIS LLP