Opinion and Consent of Ropes & Gray Regarding Tax Matters
Exhibit (12)
June , 2001
Fifth Third ______ Fund
- -- Fifth Third Funds
3435 Stelzer Road
Columbus, Ohio 43219
Fifth Third/Maxus _______ Fund
The Tower at Erieview, 36th Floor
1301 East Ninth Street
Cleveland, Ohio 44114
Ladies and Gentlemen:
We have acted as counsel in connection with the Agreement and Plan of
Reorganization dated as of March __, 2001 (the "Agreement"), between Fifth Third
Funds (the "Acquiring Trust"), a Massachusetts business trust, on behalf of one
of its series, the Fifth Third ______ Fund ("Acquiring Fund") and the Fifth
Third/Maxus______ Fund (the "Target Fund"). The Agreement describes a proposed
transaction (the "Transaction") to occur on June __, 2001, or such other date as
may be decided by the parties (the "Exchange Date"), pursuant to which the
Acquiring Fund will acquire substantially all of the assets of Target Fund in
exchange for shares of beneficial interest in the Acquiring Fund (the "Acquiring
Fund Shares") and the assumption by the Acquiring Fund of all of the liabilities
of the Target Fund following which the Acquiring Fund Shares received by the
Target Fund will be distributed by the Target Fund to its shareholders in
liquidation of the Target Fund. This opinion as to certain federal income tax
consequences of the Transaction is furnished to you pursuant to Sections ___ and
___ of the Agreement. Capitalized terms not defined herein are defined in the
Agreement.
The Target Fund is a Trust which is registered under the Investment Company
Act of 1940, as amended (the "1940 Act"), as an open-end management investment
company. Shares of the Target Fund are redeemable at net asset value at each
shareholder's option. The Target Fund has elected to be a regulated investment
company for federal income tax purposes under Section 851 of the Internal
Revenue Code of 1986, as amended (the "Code").
The Acquiring Fund is a series of the Trust which is registered under the
1940 Act as an open-end management investment company. Shares of the Acquiring
Fund are redeemable at net asset value at each shareholder's option.
For purposes of this opinion, we have considered the Agreement, the Proxy
Statement, the Registration Statement (including the items incorporated by
reference therein), and such other items as we have deemed necessary to render
this opinion. In addition, you provided us
with a letter dated as of the date hereof, representing as to certain facts,
occurrences and information upon which you have indicated that we may rely in
rendering this opinion (whether or not contained or reflected in the documents
and items referred to above).
Based on the foregoing representations and our review of the documents and
items referred to above, we are of the opinion that for federal income tax
purposes:
(i) The Transaction will constitute a reorganization within the meaning of
Section 368(a) of the Code. Acquiring Fund and Target Fund will each
be a "party to a reorganization" within the meaning of Section 368(b)
of the Code;
(ii) No gain or loss will be recognized by the Acquiring Fund upon the
receipt of the assets of the Target Fund in exchange for Acquiring
Fund Shares and the assumption by the Acquiring Fund of the
liabilities of the Target Fund;
(iii) The basis in the hands of Acquiring Fund of the assets of the Target
Fund transferred to the Acquiring Fund in the transaction will be the
same as the basis of such assets in the hands of the Target Fund
immediately prior to the transfer;
(iv) The holding periods of the assets of Target Fund in the hands of the
Acquiring Fund will include the periods during which such assets were
held by the Target Fund;
(v) No gain or loss will be recognized by the Target Fund upon the
transfer of the Target Fund's assets to the Acquiring Fund in exchange
for Acquiring Fund Shares and the assumption by the Acquiring Fund of
the liabilities of the Target Fund, or upon the distribution of
Acquiring Fund Shares by the Target Fund to its shareholders in
liquidation;
(vi) No gain or loss will be recognized by the Target Fund shareholders
upon the exchange of their Target Fund Shares for Acquiring Fund
Shares;
(vii) The aggregate basis of Acquiring Fund Shares a Target Fund shareholder
receives in connection with the transaction will be the same as the
aggregate basis of his or her Target Fund Shares exchanged therefor;
(viii) A Target Fund shareholder's holding period for his or her Acquiring
Fund Shares will be determined by including the period for which he or
she held the Target Fund Shares exchanged therefor, provided that he
or she held such Target Fund Shares as capital assets; and
(ix) The Acquiring Fund will succeed to and take into account the items of
the Target Fund described in Section 381(c) of the Code. The Acquiring
Fund will take these items into account subject to the conditions and
limitations specified in Sections 381, 382, 383 and 384 of the Code
and the Regulations thereunder.
Very truly yours,
DRAFT
Ropes & Gray