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Xxxxxxxx Ronon Xxxxxxx & Xxxxx, LLP
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September 14, 2018
Board of Trustees, The Xxxxxxx Funds
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Agreement and Plan of Reorganization (“Agreement”) adopted as of September 14, 2018 by and among The Xxxxxxx Funds, an open-end registered investment company (“Target Entity”), on behalf of its two series portfolios, the Xxxxxxx All Cap Value Fund and the Xxxxxxx Strategic Opportunities Fund (each, a “Target Fund,” and together, the “Target Funds”) and Managed Portfolio Series, an open-end registered investment company (“Acquiring Entity”), on behalf of two of its series portfolios, the Xxxxxxx All Cap Value Fund and the Xxxxxxx Strategic Opportunities Fund (each, an “Acquiring Fund,” and together, the “Acquiring Funds,” and each Target Fund and each Acquiring Fund, a “Fund”)
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Ladies and Gentlemen:
You have requested our opinion as to certain federal income tax consequences of the Reorganizations set forth on Schedule 1.1, attached hereto, of the Target Funds, pursuant to which: (i) each Acquiring Fund will acquire all of the assets, property, and goodwill and assume all of the liabilities of the corresponding Target Fund (identified in the table provided in Schedule 1.1) in exchange for corresponding class shares of the corresponding Acquiring Fund (identified in the table provided in Schedule 1.1) of equal value to the net assets of the Target Fund, and (ii) the Target Fund will distribute such shares of the corresponding Acquiring Fund to shareholders of the Target Fund, in connection with the liquidation of the Target Fund, all upon the terms and conditions of the Agreement (the “Reorganization”). Each Acquiring Fund is, and will be immediately prior to Closing, a shell series, without assets (other than seed capital) or liabilities, created for the purpose of acquiring the Assets and Liabilities of the Target Fund. Capitalized terms not otherwise defined herein shall have the meanings assigned to them in the Agreement.
Philadelphia, PA • Harrisburg, PA • Malvern, PA • Cherry Hill, NJ • Wilmington, DE • Washington, DC • New York, NY • Chicago, IL
A Pennsylvania Limited Liability Partnership
Board of Trustees, The Xxxxxxx Funds
Board of Trustees, Managed Portfolio Series
September 14, 2018
Page 2
In rendering our opinion, we have reviewed and relied upon: (a) a copy of the executed Agreement, adopted as of September 14, 2018; (b) the Proxy Statement/Prospectus provided to shareholders of the Target Funds dated August 3, 2018; (c) certain representations concerning the Reorganization made to us by the Acquiring Entities, on behalf of the Acquiring Funds, and the Target Entities, on behalf of the Target Funds, in letters dated September 14, 2018 (the “Representation Letters”); (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.
For purposes of this opinion, we have assumed that each Target Fund on the Closing Date of the Reorganization satisfies, and immediately following the Closing Date of the Reorganization, each 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 regulated investment companies.
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 Letters for the Target Funds and the Acquiring Funds, it is our opinion that for federal income tax purposes:
1. The acquisition by the Acquiring Fund of all of the Assets of its corresponding Target Fund in exchange for the Acquiring Fund shares and the assumption by the corresponding Acquiring Fund of the Liabilities of its corresponding Target Fund, followed by the distribution by the Target Fund to its shareholders of the Acquiring Fund shares in complete liquidation of the Target Fund, will qualify as a reorganization within the meaning of Section 368(a)(1)(F) of the Code, and the Target 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 the Target Fund upon the transfer of all of its Assets to, and assumption of its Liabilities by, its corresponding Acquiring Fund in exchange solely for the Acquiring Fund shares pursuant to Sections 361(a) and 357(a) of the Code.
3. No gain or loss will be recognized by the Acquiring Fund upon the receipt by it of all of the Assets of its corresponding Target Fund in exchange solely for the Acquiring Fund shares and the assumption by the Acquiring Fund of the Liabilities of its corresponding Target Fund pursuant to Section 1032(a) of the Code.
4. No gain or loss will be recognized by the Target Fund upon the distribution of its corresponding Acquiring Fund’s shares to its shareholders in complete liquidation of the Target Fund pursuant to Section 361(c)(1) of the Code.
5. The tax basis of the Assets of the Target Fund received by its corresponding Acquiring Fund will be the same as the tax basis of the Assets to the Target Fund immediately prior to the exchange pursuant to Section 362(b) of the Code.
Board of Trustees, The Xxxxxxx Funds
Board of Trustees, Managed Portfolio Series
September 14, 2018
Page 3
6. The holding periods of the Assets of the Target Fund received by its corresponding Acquiring Fund will include the periods during which such Assets were held by the Target Fund pursuant to Section 1223(2) of the Code.
7. No gain or loss will be recognized by the shareholders of the Target Fund upon the exchange of their Target Fund shares for its corresponding Acquiring Fund’s shares (including fractional shares to which they may be entitled), pursuant to Section 354(a) of the Code.
8. The aggregate tax basis of the Acquiring Fund shares received by shareholders of the Target Fund (including fractional shares to which they may be entitled) will be the same as the aggregate tax basis of the Target 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 Target Fund (including fractional shares to which they may be entitled) will include the holding period of the Target Fund shares surrendered in exchange therefor, provided that such Target Fund as a capital asset on the date 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 regulations issued by the United States Department of the Treasury (the “Income Tax Regulations”), the items of the Target Fund described in Section 381(c) of the Code as if there had been no Reorganization, subject to the conditions and limitations specified in Sections 381, 382, 383 and 384 of the Code, if applicable, and the Income Tax Regulations promulgated thereunder.
Notwithstanding anything to the contrary herein, we express no opinion as to the effect of the Reorganization on the Target Funds, the Acquiring Funds or any Target Fund shareholders with respect to any asset (including without limitation any stock held in a passive foreign investment company as defined in section 1297(a) of the Code or any contract described in Section 1256(b) of the Code) as to which any unrealized gain or loss is required to be recognized for federal income tax purposes at the end of a taxable year (or on the termination or transfer thereof) regardless of whether such transfer would otherwise be a nontaxable transaction under the Code.
Our opinion is based upon the Code, the applicable Income Tax 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.
Board of Trustees, The Xxxxxxx Funds
Board of Trustees, Managed Portfolio Series
September 14, 2018
Page 4
Our opinion is conditioned upon the performance by the Acquiring Entities, on behalf of the Acquiring Funds, and the Target Entities, on behalf of the Target Funds, of the undertakings in the Agreement and the Representation Letters. Except as expressly set forth above, we express no other opinion to any party as to the tax consequences, whether federal, state, local or foreign, with respect to (i) the Reorganization or any transaction related to or contemplated by such Reorganization (or incident thereto) or (ii) the effect, if any, of the Reorganization on any other transaction and/or the effect, if any, of any such other transaction on the Reorganization.
We hereby consent to the use of this opinion as an exhibit to the registration statement of each Acquiring Fund on Form N-14, and any amendments thereto, covering the registration of the Acquiring Fund Shares under the Securities Act of 1933, as amended, to be issued in the Reorganization.
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Very truly yours,
/s/ Xxxxxxxx Ronon Xxxxxxx & Xxxxx, LLP
Xxxxxxxx Ronon Xxxxxxx & Xxxxx, LLP
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SCHEDULE 1.1
CHART OF REORGANIZATIONS
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Target Fund (Share Class)
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Corresponding Acquiring Fund (Share Class)
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Xxxxxxx All Cap Value Fund
(Adviser Class)
(Class C)
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Xxxxxxx All Cap Value Fund
(Adviser Class)
(Class C)
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Xxxxxxx Strategic Opportunity Fund
(Adviser Class)
(Class A)
(Class C)
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Xxxxxxx Strategic Opportunity Fund
(Adviser Class)
(Class A)
(Class C)
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