Exhibit 8
September 13, 2004
Health Care REIT, Inc.
One SeaGate
Suite 1500
Toledo, Ohio 43604
Re: Federal Income Tax Consequences
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Ladies and Gentlemen:
We have acted as special tax counsel to Health Care REIT, Inc., a
Delaware corporation (the "Company"), in connection with the issuance and sale
of $50,000,000 principal amount of 6.0% Notes (the "Notes"), pursuant to a
prospectus supplement dated September 9, 2004 ("Prospectus Supplement") to the
prospectus dated August 4, 2003 (collectively, the "Prospectus") included in the
Company's Registration Statement on Form S-3 (File No. 333-107280) (the
"Registration Statement"), filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended. You have requested our opinion
regarding certain U.S. federal income tax matters in connection with the filing
of the Registration Statement. Certain capitalized terms used herein without
definition are as defined in the Registration Statement.
In giving this opinion, we have examined the following:
- the Second Restated Certificate of Incorporation, as amended, of
the Company;
- the Amended and Restated Bylaws of the Company;
- the Company's Annual Report on Form 10-K for the year ended
December 31, 2003;
- the Prospectus;
- the taxable REIT subsidiary elections for HCRI Tucson Inc., HCRI
Investments, Inc. and HCRI Chicago Properties, Inc.; and
- such other documents as we have deemed necessary or appropriate
for purposes of this opinion.
Health Care REIT, Inc.
September 13, 2004
Page 2
In connection with the opinions rendered below, we have assumed with
your consent that:
1. Each of the documents referred to above has been duly authorized,
executed and delivered; is authentic, if an original, or is accurate, if a copy;
and has not been amended;
2. During its taxable years ended December 31, 1998 through December
31, 2003, the Company has operated, and, in future taxable years, the Company
will operate, in a manner that has caused or will make, as the case may be, the
factual representations relating to the ownership, operation, future method of
operations, and compliance of the Company with the real estate investment trust
("REIT") provisions of the Internal Revenue Code of 1986, as amended (the
"Code"), and the Treasury Regulations (the "Regulations") thereunder, as in
effect as of the date hereof, contained in a certificate, dated September 13,
2004 and executed by a duly appointed officer of the Company (the "Officer's
Certificate"), true for such years;
3. The Company will not make any amendments to its organizational
documents after the date of this opinion that would affect its qualification as
a REIT under sections 856-860 of the Code for any taxable year; and
4. No action will be taken by the Company after the date hereof that
would have the effect of altering the facts upon which the opinions set forth
below are based.
In our capacity as special tax counsel to the Company, we have made
such legal and factual examinations and inquiries as we have deemed necessary or
appropriate for purposes of our opinions rendered below. For the purposes of
rendering these opinions, we have not made an independent investigation of the
facts set forth in any documents delivered to us, including, without limitation,
the Officer's Certificate. We have relied completely upon the Company's
representations that the information presented in such documents accurately
reflects all material facts. In the course of our representation of the Company,
we have not been made aware of any facts inconsistent with such factual
representations. In addition, where such factual representations involve terms
defined or used in the Code, the Regulations, published rulings of the Internal
Revenue Service (the "Service") or other relevant authority, we have explained
such terms to the Company's representatives and are satisfied that the Company's
representatives understand such terms and are capable of making such factual
representations.
Based on the Code, Regulations, documents, assumptions and statements
set forth above, the factual representations set forth in the Officer's
Certificate and our review of
Health Care REIT, Inc.
September 13, 2004
Page 3
the discussion in the Prospectus under the captions "Additional U.S. Federal
Income Tax Considerations" and "U.S. Federal Income Tax Considerations" and the
discussion in the Company's Annual Report on Form 10-K for the year ended
December 31, 2003 under the caption "Taxation," we are of the opinion that:
(a) the Company qualified to be taxed as a REIT pursuant to
sections 856 through 860 of the Code for its taxable years ended
December 31, 1998 through December 31, 2003, and the Company's
organization and current and proposed method of operation will enable
it to continue to meet the requirements for qualification and taxation
as a REIT under the Code for all future taxable years; and
(b) the descriptions of the law and the legal conclusions
contained in the Prospectus under the captions "Additional U.S. Federal
Income Tax Considerations" and "U.S. Federal Income Tax Considerations"
and in the Company's Annual Report on Form 10-K for the year ended
December 31, 2003 under the caption "Taxation," fairly summarize the
federal income tax considerations that are likely to be material to a
holder of the Notes.
We will not review on a continuing basis the Company's compliance with
the documents or assumptions set forth above, or the factual representations set
forth in the Officer's Certificate. Accordingly, no assurance can be given that
the actual results of the Company's operations for any given taxable year will
satisfy the requirements for qualification and taxation as a REIT.
The foregoing opinions are based on current provisions of the Code and
the Regulations, published administrative interpretations thereof and published
court decisions and assume that none of these will change. No assurance,
however, can be given that the law will not change in a way that will prevent
the Company from qualifying as a REIT.
The foregoing opinions are limited to the U.S. federal income tax
matters addressed herein, and no other opinions are rendered with respect to
other federal tax matters or to any issues arising under the tax laws of any
other country, or any state or locality. You must judge for yourselves whether
the matters addressed in this opinion letter are sufficient for your purposes.
This letter speaks only as of this date, and we undertake no obligation to
update the opinions expressed herein after the date of this
Health Care REIT, Inc.
September 13, 2004
Page 4
letter. This opinion letter may not be distributed, or quoted in whole or in
part, or otherwise reproduced in any document, or filed with any governmental
agency, in each case without our express written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not acknowledge that we
are in the category of persons whose consent is required by Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations promulgated
thereunder by the Securities and Exchange Commission.
Very truly yours,
/s/ Arnold & Porter LLP
ARNOLD & PORTER LLP