Exhibit 8.1
November 19, 2001
RE: Issuance and Sale of Equity Units
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Duke Energy Corporation
526 South Church Street
Charlotte, N.C. 28202
Duke Capital Corporation
526 South Church Street
Charlotte, N.C. 28202
Ladies and Gentlemen:
We have acted as tax counsel ("Tax Counsel") to Duke Energy
Corporation, a North Carolina corporation (the "Company"), and Duke Capital
Corporation, a Delaware Corporation ("Duke Capital"), in connection with the
preparation and filing by the Company and Duke Capital with the Securities and
Exchange Commission (the "Commission") of the Prospectus Supplement dated
November 13, 2001 to the Prospectus dated April 24, 2001 (together, the
"Prospectus"), which formed a part of the Registration Statement on Form S-3 (as
amended, the "Registration Statement") under the Securities Act of 1933, as
amended, with respect to the issuance of 30,000,000 (plus an additional
4,500,000 if the over-allotment option is exercised in full by the underwriters)
Equity Units (the "Equity Units"), consisting of units (referred to as
"Corporate Units") initially comprised of (i) a purchase contract under which
the holder agrees to purchase shares of common stock of the Company
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on November 16, 2004 (a "Purchase Contract") and (ii) a 4.32% Duke Capital
Senior Note having a $25 stated principal amount (a "Senior Note"). All
capitalized terms used in this opinion letter and not otherwise defined herein
shall have the meanings ascribed to such terms in the Registration Statement.
In delivering this opinion letter, we have reviewed and relied
upon: (i) the Prospectus; (ii) a form of the Indenture; (iii) a form of the
Supplemental Indenture; (iv) a form of the Senior Note; (v) a form of the
Purchase Contract Agreement; (vi) forms of the Global Treasury Units
Certificates; (vii) forms of the Global Corporate Units; (viii) a form of the
Remarketing Agreement; (ix) a form of the Pledge Agreement; and (x) a form of
the Underwriting Agreement. We also have examined and relied upon originals, or
duplicates or certified or conformed copies, of such records of the Company and
Duke Capital and such other documents, certificates, representations and records
as we have deemed necessary or appropriate as a basis for the opinions set forth
herein.
In our examination of such material, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity to original documents of all copies of documents
submitted to us. In addition, we also have assumed that factual representations
made to us are true, correct and complete and that the transactions related to
the issuance of the Equity Units, the Corporate Units, and the Senior Notes will
be consummated in accordance with the terms of the documents and forms of
documents described herein. If any of the above described assumptions are untrue
for any reason or if the issuance of the Equity Units, the Corporate Units, and
the Senior Notes is consummated in a manner that is inconsistent with the manner
in which it is described in the
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Prospectus, our opinions as expressed below may be adversely affected and may
not be relied upon.
On the basis of the foregoing, we are of the opinion that
under current United States federal income tax law (i) the Duke Capital Senior
Notes will be classified as indebtedness for United States federal income tax
purposes and (ii) the statements made in the Prospectus under the caption
"United States Federal Income Tax Consequences", insofar as they purport to
constitute summaries of matters of United States federal tax law and regulations
or legal conclusions with respect thereto, constitute accurate summaries of the
matters described therein in all material respects.
We express no opinion with respect to the transactions
referred to herein or in the Prospectus other than as expressly set forth
herein.
Our opinions are based upon the Internal Revenue Code of 1986,
as amended, the Treasury regulations promulgated thereunder and other relevant
authorities and law, all as in effect on the date hereof. Consequently, future
changes in the law may cause the tax treatment of the transactions referred to
herein to be materially different from that described in the Prospectus. We
disclaim any undertaking to advise you of any subsequent changes of the matters
stated, represented or assumed herein or any subsequent changes in applicable
law, regulations or interpretations thereof.
We are members of the Bar of the State of New York, and we do
not express any opinion herein concerning any law other than the federal law of
the United States.
We consent to the filing of this opinion as an exhibit to the
Form 8-K to be filed with the Securities and Exchange Commission and to the use
of our name in the
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Registration Statement under the captions "United States Federal Income Tax
Consequences" and "Legal Matters".
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT