Exhibit 8.1
[LETTERHEAD OF GIBSON, DUNN & CRUTCHER LLP]
March , 2001
Duke Energy Corporation
Duke Capital Corporation
526 South Church Street
Charlotte, NC 28202
Re: Offering of Equity Units
Ladies and Gentlemen:
We have acted as tax counsel to Duke Energy Corporation, a North Carolina
corporation ("Duke Energy") and Duke Capital Corporation, a Delaware corporation
("Duke Capital"), in connection with the issuance of certain equity units (the
"Equity Units"), consisting of units (referred to as "Corporate Units")
initially comprised of stock purchase contracts (the "Purchase Contracts"), to
purchase common stock of Duke Energy and five-year senior notes (the "Senior
Notes") issued by Duke Capital.
In formulating our opinion, we have reviewed such documents as we deemed
necessary or appropriate, including (i) the Registration Statement of Duke
Energy (File No. 333-52204) on Form S-3 dated December 19, 2000, filed with the
U.S. Securities and Exchange Commission (the "Commission") pursuant to the
Securities Act of 1933, as amended (the "Act") (the "Duke Energy Registration
Statement"); (ii) the Registration Statement of Duke Capital (File No. 333-
92283) on Form S-3 dated December 7, 1999, filed with the Commission pursuant to
the Act, and as amended January 4, 2000 (the "Duke Capital Registration
Statement," and, together with the Duke Energy Registration Statement, the
"Registration Statements"); (iii) the Prospectus of Duke Energy that was
included in the Duke Energy Registration Statement on Form S-3, as declared
effective by the Commission on December 26, 2000 (the "Duke Energy Prospectus");
(iv) the Prospectus of Duke Capital that was included in the Duke Capital
Registration Statement on Form S-3, as declared effective by the Commission on
January 7, 2000 (the "Duke Capital Prospectus," and, together with the Duke
Energy Prospectus, the "Prospectuses"); (v) the Supplement to the Prospectus for
the Equity Units, dated March , 2001 and forming a part of the Duke Energy
Registration Statement (the "Duke Energy Prospectus Supplement"); (vi) the
supplement to the Duke Capital Prospectus for the Senior Notes, dated March ,
2001 and forming a part of the Duke Capital Registration Statement (the "Duke
Capital Prospectus Supplement," and, together with the Duke Energy Prospectus
Supplement, the "Prospectus Supplements"); (vii) the Senior Indenture, dated as
of April 1, 1998, between Duke Capital and The
Duke Energy Corporation
Duke Capital Corporation
March , 2001
Page 2
Chase Manhattan Bank, a New York banking corporation, as trustee (the
"Trustee"); (viii) the First Supplemental Indenture, dated as of July 20, 1998,
between Duke Capital and the Trustee; (ix) the Second Supplemental Indenture,
dated as of September 28, 1999, between Duke Capital and the Trustee; (x) the
Third Supplemental Indenture, dated as of March , 2001 between Duke Capital
and the Trustee; and (xi) the Purchase Contract Agreement, dated as of March ,
2001, between Duke Energy and The Chase Manhattan Bank, a New York banking
corporation, as purchase contract agent (the "Purchase Contract Agent"). In
addition, we have made such other factual and legal inquiries as we have
considered necessary or appropriate.
Our opinion set forth below assumes (i) the initial and continuing accuracy
of the statements and facts concerning the Equity Units and the Senior Notes set
forth in the Registration Statements, the Prospectuses and the Prospectus
Supplements and certain other documents; (ii) the conformity of the Equity Units
and the Senior Notes to the terms set forth in the Registration Statements, the
Prospectuses and the Prospectus Supplements; and (iii) the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, and the conformity to original documents
of all documents submitted to us as photocopies. We also have assumed that the
transactions related to the issuance of the Equity Units will be consummated in
the manner contemplated by the Registration Statements, the Prospectuses and the
Prospectus Supplements.
Based upon the foregoing and in reliance thereon, and subject to the
qualifications, exceptions, assumptions and limitations herein contained, we are
of the opinion that:
(1) the discussion in the Duke Energy Prospectus Supplement under the
heading "Certain Federal Income Tax Consequences" constitutes, in all
material respects, a fair and accurate summary of the matters addressed
therein, based on the assumptions stated or referred to therein; and
(2) the Senior Notes will be treated as indebtedness of Duke Capital for
U.S. federal income tax purposes.
We express no opinion concerning any tax consequences associated with the
Equity Units other than those specifically set forth herein.
Our opinion is based on current provisions of the Internal Revenue Code of
1986, as amended, Treasury Regulations promulgated thereunder, published
pronouncements of the Internal Revenue Service, and case law, any of which may
be changed at any time with retroactive effect. Any change in applicable law or
the facts and circumstances surrounding the Equity Units, or any inaccuracy in
the statements, facts, assumptions, and representations on which we relied, may
affect the continuing validity of the opinion set forth herein. We assume
Duke Energy Corporation
Duke Capital Corporation
March , 2001
Page 3
no responsibility to inform you of any such changes or inaccuracy that may occur
or come to our attention.
This opinion is furnished to you solely for your benefit in connection with
the offering of the Equity Units and is not to be used, circulated, quoted or
otherwise referred to for any other purpose or relied upon by any other person
without our prior written consent. We consent to the use of our name under the
heading "Certain Federal Income Tax Consequences" in the Duke Energy Prospectus
Supplement. We hereby consent to the filing of this opinion with the Commission
as Exhibit 8.1 to the Current Report on Form 8-K of Duke Energy filed on March
13, 2001 with the Commission. In giving these consents, we do not thereby admit
that we are within the category of persons whose consent is required under the
Act, or the rules and regulations of the Commission promulgated thereunder.