Exhibit No. EX-99.12(a)
April 11, 2005
Board of Trustees
Voyageur Insured Funds
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Board of Trustees
Voyageur Mutual Funds
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Re: Agreement and Plan of Reorganization (the "Agreement") made as of the
7th day of April, 2005, by and between Voyageur Insured Funds, a
statutory trust created under the laws of the State of Delaware, on
behalf of its series, Delaware Tax-Free Arizona Fund ("Acquiring
Fund"), and Voyageur Mutual Funds, a statutory trust created under the
laws of the State of Delaware, on behalf of its series, Delaware
Tax-Free Arizona Insured Fund ("Acquired Fund")____________________
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 Voyageur Insured Funds, on behalf
of the Acquiring Fund, of substantially all of the property, assets and goodwill
of the Acquired Fund in exchange solely for (a) shares of beneficial interest,
no par value, of the Acquiring Fund - Class A ("Acquiring Fund Class A Shares"),
(b) shares of beneficial interest, no par value, of the Acquiring Fund - Class B
("Acquiring Fund Class B Shares"), (c) shares of beneficial interest, no par
value, of the Acquiring Fund - Class C ("Acquiring Fund Class C Shares"), (d)
shares of beneficial interest, no par value, of the Acquiring Fund - Class R
("Acquiring Fund Class R Shares"), (e) shares of beneficial interest, no par
value, of the Acquiring Fund - Institutional Class ("Acquiring Fund
Institutional Class Shares" and, together with Acquiring Fund Class A Shares,
"Acquiring Fund Class B Shares, Acquiring Fund Class C Shares, Acquiring Fund
Class R Shares, the "Acquiring Fund Shares"), and (f) the assumption by Voyageur
Insured Funds, on behalf of the Acquiring Fund, of all of the liabilities of the
Acquired Fund; (ii) the distribution of (a) Acquiring Fund Class A shares to the
shareholders of Acquired Fund - Class A Shares ("Acquired Fund Class A Shares"),
(b) Acquiring Fund Class B Shares to the shareholders of Acquired Fund - Class B
Shares ("Acquired Fund Class B Shares"), (c) Acquiring Fund Class C Shares to
the shareholders of Acquired Fund - Class C Shares ("Acquired Fund Class C
Shares"), (d) Acquiring Fund Class R Shares to the shareholders of Acquired Fund
- Class R Shares ("Acquired Fund Class R Shares"), and (e) Acquiring Fund
Institutional Class Shares to the shareholders of Acquired Fund - Institutional
Class Shares ("Acquired Fund Institutional Class Shares" and, together with the
Acquired Fund Class A Shares, Acquired Fund Class B Shares, Acquired Fund Class
C Shares and Acquired Fund Class R Shares, the "Acquired Fund Shares"),
according to their respective interests in complete liquidation of the Acquired
Fund; and (iii) the dissolution of the Acquired Fund as soon as practicable
after the closing (the "Closing"), all upon and subject to the terms and
conditions of the Agreement.
In rendering our opinion, we have reviewed and relied upon: (a) the
Agreement, made as of the 7th day of April, 2005, by and between the Voyageur
Insured Funds, on behalf of the Acquiring Fund, and the Voyageur Mutual Funds,
on behalf of the Acquired Fund; (b) the proxy materials provided to shareholders
of the Acquired Fund in connection with the Shareholders' Meeting of the
Acquired Fund held on March 23, 2005; (c) certain representations concerning the
Reorganization made to us by the Voyageur Insured Funds Trust, on behalf of the
Acquiring Fund, and the Voyageur Mutual Funds, on behalf of the Acquired Fund,
in a letter dated April 11, 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 Agreement.
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 Delaware, the terms of the
Agreement and the statements in the Representation Letter with regard to matters
of fact, it is our opinion that:
1. The acquisition by the Acquiring Fund of substantially all of the assets
and the assumption of the liabilities of the Acquired Fund as provided for in
the Agreement in exchange solely 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 and the assumption of the
liabilities by 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 of the assets to and the assumption of the
liabilities 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 Agreement) 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 Acquired Fund Shares for the 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 on the Closing of the Reorganization pursuant to Section
1223(1) of the Code.
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 Closing of the Reorganization.
Our opinion is conditioned upon the performance by the Voyageur Insured
Funds, on behalf of the Acquiring Fund, and the Voyageur Mutual Funds, on behalf
of the Acquired Fund, of their undertakings in the Agreement 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 Voyageur Insured Funds, on behalf of
the Acquiring Fund, and the Voyageur Mutual Funds, on behalf of 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 Acquired Fund on Form N-14, and any amendments thereto,
covering the registration of the shares of the Acquired 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
