Exhibit No. 99(12)(a)
June 24, 2005
Board of Directors
Lincoln National Convertible Securities Fund, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Board of Trustees
Delaware Group Equity Funds V
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Re: Agreement and Plan of Acquisition (the "Plan") dated as of June
16, 2005, by and among (i) Lincoln National Convertible Securities
Fund, Inc, a corporation incorporated under the laws of the State of
Maryland ("Acquired Fund"), (ii) Delaware Group Equity Funds V
("Acquiring Trust"), on behalf of its series Delaware Dividend Income
Fund ("Acquiring Fund"), a statutory trust formed under the laws of
the State of Delaware, and (iii) Delaware Management Company ("DMC"),
a series of Delaware Management Business Trust, a statutory trust
formed under the laws of the State of Delaware
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Ladies and Gentlemen:
You have requested our opinion concerning certain federal income tax
consequences of the reorganization of the Acquired Fund (the "Reorganization"),
which will consist of: (i) the acquisition by Acquiring Trust, on behalf of
Acquiring Fund, of substantially all of the property, assets and goodwill of
Acquired Fund in exchange solely for full and fractional shares of beneficial
interest, without par value, of Acquiring Fund -Class A Shares ("Acquiring Fund
Shares"), which are voting securities; (ii) the distribution of Acquiring Fund
Shares to the shareholders of Acquired Fund according to their respective
interests in liquidation of Acquired Fund; and (iii) the dissolution of Acquired
Fund as soon as is practicable after the closing ( the "Closing" and the date of
closing the "Closing Date"), all upon and subject to the terms and conditions of
this Plan hereinafter set forth.
In rendering our opinion, we have reviewed and relied upon: (a) the Plan,
made as of the 16th day of June, 2005, by and among the Acquired Fund, the
Acquiring Fund and DMC; (b) the proxy materials provided to shareholders of the
Acquired Fund in connection with the Special Meeting of Shareholders of the
Acquired Fund held on June 16, 2005; (c) certain representations concerning the
Reorganization made to us by the Acquired Fund and the Acquiring Fund in a
letter dated June 24, 2005 (the "Representation Letter"); (d) all other
documents, financial and other reports and corporate minutes we deemed relevant
or appropriate; and (e) such statutes, regulations, rulings and decisions as we
deemed material in rendering this opinion. All terms used herein, unless
otherwise defined, are used as defined in the Plan.
For purposes of this opinion, we have assumed that the Acquired Fund, on
the Closing of the Reorganization, satisfies, and immediately following the
Closing, the Acquiring Fund will continue to satisfy, the requirements of
Subchapter M of the Internal Revenue Code of 1986, as amended (the "Code"), for
qualification as a regulated investment company.
Based on the foregoing, and provided the Reorganization is carried out in
accordance with the applicable laws of the State of Maryland and State of
Delaware, the terms of the Plan and the statements in the Representation Letter,
it is our opinion that:
1. The acquisition by the Acquiring Fund of substantially all the assets of
the Acquired Fund as provided for in the Plan in exchange for the Acquiring Fund
Shares followed by the distribution by the Acquired Fund to its shareholders of
the Acquiring Fund Shares in complete liquidation of the Acquired Fund will
qualify as a reorganization within the meaning of Section 368(a)(1) of the Code,
and the Acquired Fund and the Acquiring Fund each will be a "party to the
reorganization" within the meaning of Section 368(b) of the Code.
2. No gain or loss will be recognized by the Acquired Fund upon the
transfer of substantially all of its assets to the Acquiring Fund in exchange
solely for the Acquiring Fund Shares pursuant to Section 361(a) and Section
357(a) of the Code.
3. No gain or loss will be recognized by the Acquiring Fund upon the
receipt by it of substantially all the assets of the Acquired Fund in exchange
solely for the Acquiring Fund Shares pursuant to Section 1032(a) of the Code.
4. No gain or loss will be recognized by the Acquired Fund upon the
distribution of the Acquiring Fund Shares to its shareholders in complete
liquidation of the Acquired Fund (in pursuance of the Plan) pursuant to Section
361(c)(1) of the Code.
5. The basis of the assets of the Acquired Fund received by the Acquiring
Fund will be the same as the basis of these assets to the Acquired Fund
immediately prior to the exchange pursuant to Section 362(b) of the Code.
6. The holding period of the assets of the Acquired Fund received by the
Acquiring Fund will include the period during which such assets were held by the
Acquired Fund pursuant to Section 1223(2) of the Code.
7. No gain or loss will be recognized by the shareholders of the Acquired
Fund upon the exchange of their shares in the Acquired Fund (the "Acquired Fund
Shares") for Acquiring Fund Shares (including fractional shares to which they
may be entitled) pursuant to Section 354(a) of the Code.
8. The basis of the Acquiring Fund Shares received by the shareholders of
the Acquired Fund (including fractional shares to which they may be entitled)
will be the same as the basis of the Acquired Fund Shares exchanged therefor
pursuant to Section 358(a)(1) of the Code.
9. The holding period of the Acquiring Fund Shares received by the
shareholders of the Acquired Fund (including fractional shares to which they may
be entitled) will include the holding period of the Acquired Fund Shares
surrendered in exchange therefor, provided that the Acquired Fund Shares were
held as a capital asset pursuant to Section 1223(1) of the Code on the Closing
Date.
10. The Acquiring Fund will succeed to and take into account, as of the
date of the transfer as defined in Section 1.381(b)-1(b) of the income tax
regulations issued by the United States Department of the Treasury (the
"Treasury Regulations"), the items of the Acquired Fund described in Section
381(c) of the Code, subject to the conditions and limitations specified in
Sections 381, 382, 383 and 384 of the Code and the Treasury Regulations.
Our opinion is based upon the Code, the applicable Treasury Regulations,
the present positions of the Internal Revenue Service (the "Service") as are set
forth in published revenue rulings and revenue procedures, present
administrative positions of the Service, and existing judicial decisions, all of
which are subject to change either prospectively or retroactively. We do not
undertake to make any continuing analysis of the facts or relevant law following
the date of the Reorganization.
Our opinion is conditioned upon the performance by the Acquiring Trust, on
behalf of the Acquiring Fund, and the Acquired Fund of their undertakings in the
Plan and the Representation Letter. Our opinion is limited to the transactions
incident to the Reorganization described herein, and no opinion is rendered with
respect to (i) any other transaction or (ii) the effect, if any, of the
Reorganization (and/or the transactions incident thereto) on any other
transaction and/or the effect, if any, of any such other transaction on the
Reorganization.
This opinion is being rendered to the Acquiring Trust, on behalf of the
Acquiring Fund, and the Acquired Fund and may be relied upon only by such funds
and the shareholders of each. We hereby consent to the use of this opinion as an
exhibit to the Registration Statement of the Acquiring Fund on Form N-14, and
any amendments thereto, covering the registration of the shares of the Acquiring
Fund under the Securities Act of 1933, as amended, to be issued in the
Reorganization.
Very truly yours,
XXXXXXXX, XXXXX, XXXXXXX & XXXXX, LLP
By: /s/ Xxxxxxx X. Xxxxxxx, III
Xxxxxxx X. Xxxxxxx, III, a Partner
