Exhibit No. EX-99(12)(b)
[STRADLEY LOGO] Xxxxxxxx Xxxxx Xxxxxxx & Xxxxx, LLP
0000 Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Telephone 000-000-0000
Fax 000-000-0000
xxx.xxxxxxxx.xxx
February 24, 2006
Board of Directors
Delaware Investments Minnesota Municipal Income Fund III, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Board of Directors
Delaware Investments Minnesota Municipal Income Fund II, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Re: Agreement and Plan of Acquisition (the "Plan") dated as of February 16,
2006, by and among (i) Delaware Investments Minnesota Municipal Income Fund
III, Inc. ("Acquired Fund"), a corporation incorporated under the laws of
the State of Minnesota and a closed-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), (ii) Delaware Investments Minnesota Municipal Income Fund II, Inc.
("Acquiring Fund"), a corporation incorporated under the laws of the State
of Minnesota and a closed-end management investment company registered
under the 1940 Act, 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 Acquired Fund (the "Reorganization"),
which will consist of: (i) the acquisition by Acquiring Fund of substantially
all of the property, assets and goodwill of Acquired Fund in exchange solely for
(a) full and fractional shares of common stock, par value $0.01 per share, of
Acquiring Fund ("Acquiring Fund Common Shares"), which are voting securities,
and (b) shares of Municipal Income Preferred Shares, Series D, par value $0.01
per share, of Acquiring Fund ("Acquiring Fund Preferred Shares," and together
with Acquiring Fund Common Shares, the "Acquiring Fund Shares"), which are
voting securities, (ii) the pro rata distribution (a) of Acquiring Fund Common
Shares to shareholders of Acquired Fund Common Shares ("Acquired Fund Common
Shares"), and (b) Acquiring Fund Preferred Shares to shareholders of Acquired
Fund Preferred Shares ("Acquired Fund Preferred Shares" and together with
Acquired Fund Common Shares, the "Acquired Fund Shares"), according to their
respective interests in complete liquidation of Acquired Fund, and (iii) the
dissolution of Acquired Fund as soon as is practicable after the closing of the
Reorganization (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 February, 2006, by and among Acquired Fund, Acquiring
Fund and DMC; (b) the proxy materials provided to shareholders of Acquired Fund
in connection with the Special Meeting of Shareholders, as adjourned, of
Acquired Fund held on January 12, 2006; (c) certain representations concerning
the Reorganization made to us by Acquired Fund and Acquiring Fund in a letter
dated February 24, 2006 (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 Acquired Fund, on the
Closing of the Reorganization, satisfies, and immediately following the Closing,
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 Minnesota, the terms of the
Plan and the statements in the Representation Letter, it is our opinion that:
1. The acquisition by Acquiring Fund of substantially all the assets of
Acquired Fund as provided for in the Plan in exchange for Acquiring Fund Shares
followed by the distribution by Acquired Fund to its shareholders of Acquiring
Fund Shares in complete liquidation of Acquired Fund will qualify as a
reorganization within the meaning of Section 368(a)(1) of the Code, and Acquired
Fund and 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 Acquired Fund upon the transfer of
substantially all of its assets to Acquiring Fund in exchange solely for
Acquiring Fund Shares pursuant to Section 361(a) and Section 357(a) of the Code.
3. No gain or loss will be recognized by Acquiring Fund upon the receipt by
it of substantially all the assets of Acquired Fund in exchange solely for
Acquiring Fund Shares pursuant to Section 1032(a) of the Code.
4. No gain or loss will be recognized by Acquired Fund upon the
distribution of Acquiring Fund Shares to its shareholders in complete
liquidation of Acquired Fund (in pursuance of the Plan) pursuant to Section
361(c)(1) of the Code.
5. The basis of the assets of Acquired Fund received by Acquiring Fund will
be the same as the basis of these assets to Acquired Fund immediately prior to
the exchange pursuant to Section 362(b) of the Code.
6. The holding period of the assets of Acquired Fund received by Acquiring
Fund will include the period during which such assets were held by Acquired Fund
pursuant to Section 1223(2) of the Code.
7. No gain or loss will be recognized by the shareholders of Acquired Fund
upon the exchange of their 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 Acquiring Fund Shares received by the shareholders of
Acquired Fund (including fractional shares to which they may be entitled) will
be the same as the basis of Acquired Fund Shares exchanged therefor pursuant to
Section 358(a)(1) of the Code.
9. The holding period of Acquiring Fund Shares received by the shareholders
of Acquired Fund (including fractional shares to which they may be entitled)
will include the holding period of Acquired Fund Shares surrendered in exchange
therefor, provided that 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 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 Acquired Fund and
Acquiring 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.
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This opinion is being rendered to the Acquired Fund and Acquiring 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 Acquiring Fund on Form N-14, and any amendments thereto, covering the
registration of the shares of 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
Xxxxxxx X. Xxxxxxx, a Partner
