Exhibit 8.1
[McDonald, Hopkins, Burke &
Haber Co., L.P.A. Letterhead]
February 22, 2002
Northwest Ethanol, LLC
P.O. Box 4505
Sherwood, Ohio 43556
RE: FORM SB-2 REGISTRATION STATEMENT
Gentlemen:
We have acted as special tax counsel for Northwest Ethanol, LLC, an Ohio
limited liability company (the "Company"), in connection with the registration
on Form SB-2 of a maximum of 4,400 limited liability company units (the
"Units"). We are rendering this opinion in accordance with Item 601(b)(8) of
Regulation S-B promulgated under the Securities Act of 1933, as amended.
We are rendering this opinion only to the Company. This opinion cannot be
relied upon by any other person or entity other than the Company. The Company
may not deliver or otherwise use this opinion without the express written
consent of McDonald, Hopkins, Burke & Haber Co., L.P.A.
For purposes of this opinion letter, we have examined and relied upon
originals, counterparts, or copies thereof, of the following documents:
1. The registration statement (File No. 333-74274) filed with the
Securities and Exchange Commission (the "Commission") covering the
offer and sale of the Units dated November 30, 2001 (the "Registration
Statement");
2. The written communication between our office and the Commission
responding to the staff's comment letter dated December 31, 2001 and
all other written communications between our office and the Commission
(the "Communications");
3. Pre-Effective Amendment No. One to the Registration Statement filed
with the Commission covering the offer and sale of the Units dated
January 23, 2002 ("Amendment No. One"); and
4. Pre-Effective Amendment No. Two to the Registration Statement filed
with the Commission covering the offer and sale of the Units dated
February 22, 2002
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February 21, 2002
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("Amendment No. Two") (the Registration Statement,
the Communications, Amendment No. One and Amendment No. Two shall
hereinafter sometimes be collectively referred to as the "Offering
Documents").
In rendering the opinion expressed herein, we have considered such matters
of law and of fact, and have examined and relied upon originals or copies,
certified or otherwise identified to our satisfaction as being true copies, of
such certificates, documents and records, directors' certificates and other
documents as we have deemed relevant and necessary as a basis for the opinion
expressed herein, including but not limited to the following:
1. Articles of Organization of the Company as certified by an officer of
the Company, on the date hereof;
2. Amended and Restated Operating Agreement of the Company dated as of
November 27, 2001, as amended for clarification purposes by the
Directors on January 10, 2002 (the "Amended and Restated Operating
Agreement") as certified by an officer of the Company, on the date
hereof; and
3. Certificate of the directors of the Company dated as of the date
hereof (the "Directors' Certificate") relating to certain facts
regarding the Company upon which the opinion expressed herein is
based.
As to questions of fact material to the opinion expressed herein, we have
relied upon, and assumed the accuracy of, the Directors' Certificate, the
Offering Documents and such certificates, records and other documents that we
have reviewed in connection with giving the opinion expressed herein. We have
assumed that there are no other facts, conditions or circumstances which
conflict with or are inconsistent with those set forth in any of the foregoing.
With respect to such matters, we have not made any independent investigation or
verification of the information contained therein for purposes of this opinion
letter.
In connection with rendering the opinion expressed herein, we have with
your permission assumed, without independent investigation, the following: (i)
the legal capacity of natural persons, the absence of duress, fraud and undue
influence of all signatures on documents submitted to us, and the absence of
mutual mistake of fact or misunderstanding; (ii) the genuineness of all
signatures on documents submitted to us; (iii) the authenticity, completeness
and accuracy of all documents, materials and records submitted to us as
originals and the conformity to authentic original documents of all documents,
materials and records submitted to us as certified, conformed or photostatic
copies; (iv) that persons acting on behalf of parties, including agents and
fiduciaries, were duly authorized to act in that capacity; (v) that the
transactions contemplated by the Offering Documents have been duly authorized by
all necessary action on the part of all parties; (vi) the due execution and
delivery of the Amended and Restated Operating Agreement on the part of all
parties thereto; and (vii) that no action has
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February 21, 2002
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been taken which amends, renders ineffective or otherwise affects any of the
documents, materials or records which we have examined.
Based upon and subject to the assumptions and qualifications set forth
herein, we are of the opinion that:
1. Reasonable basis, as defined in Section 6662 of the Internal Revenue
Code and the Treasury Regulations promulgated thereunder, exists to
treat the Company as a partnership for federal income tax purposes.
2. The discussion of possible tax consequences contained in Amendment No.
Two under the heading "Federal Income Tax Consequences; Tax
Consequences To Our Members" is an accurate general description of the
principal federal income tax consequences that may arise from the
ownership and disposition of the Units.
The foregoing opinion is qualified in the following respects:
A. The federal tax consequences described in the Offering Documents
relate primarily to individual citizens and residents of the United
States and may have limited applicability to corporations, trusts,
estates, tax-exempt organizations, insurance companies, financial
institutions, foreign taxpayers and broker-dealers.
B. The opinion expressed herein is highly dependent on matters of fact,
including the individual circumstances of investors, that we are not
aware of nor have we considered. Therefore, the opinion expressed
herein should not be relied on by any investor in making their
investment decision.
C. We express no opinion as to the effect of any state or local laws,
regulations, rules or judicial decisions.
D. We express no opinions except as specifically set forth in the
numbered paragraphs above, and no opinions as to any other matter
shall be deemed to be implied by or may be inferred from any of the
numbered paragraphs set forth above.
E. The opinion expressed herein is based on existing law as published and
contained in the Internal Revenue Code, the Treasury Regulations,
administrative rulings and court decisions as of the date hereof.
F. No rulings have been requested from the Internal Revenue Service
concerning the opinion expressed herein. Accordingly, the Internal
Revenue Service or a court may disagree with the opinion expressed
herein. Therefore, the opinion expressed
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February 21, 2002
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herein will not assure the intended tax consequences nor will it bind
the Internal Revenue Service or the courts.
The opinion expressed herein is given as of the date hereof and speaks as
of only that date. We assume no obligation to advise you of any changes in fact
or law or of anything coming to our attention bearing upon the accuracy of or
completeness of any assumption, whether or not material, which may be brought to
our attention at a later date. This opinion is an expression of our professional
judgment based upon existing law, and does not constitute a guarantee of the
indicated treatment nor is it an undertaking to defend the indicated treatment
if it is challenged by the Internal Revenue Service.
We hereby consent to the filing of this opinion letter with the Commission
as an exhibit to Amendment No. Two in accordance with the requirements of Item
601(b)(8) of Regulation S-B, and to the reference to our firm therein. In giving
this consent, we do not thereby admit that we are within the category of person
whose consent is required by Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Commission thereto.
Very truly yours,
/s/ McDonald, Hopkins, Burke & Haber Co., L.P.A.
McDonald, Hopkins, Burke
& Haber Co., L.P.A.