EXHIBIT 8
Opinion of Shaw Pittman regarding certain
material tax issues relating to CNL Retirement
Properties, Inc.
<PAGE>
SHAW PITTMAN
A Law Partnership Including Professional Corporations
2300 N Street, N.W.
Washington, DC 20037
August 31, 2000
CNL Retirement Properties, Inc.
450 South Orange Avenue
Orlando, Florida 32801
Ladies and Gentlemen:
You have requested certain opinions regarding the application of U.S.
federal income tax laws to CNL Retirement Properties, Inc., formerly known as
CNL Health Care Properties, Inc. (the "Company"), in connection with the
registration statement on Form S-11, No. 333-37480, originally filed with the
Securities and Exchange Commission on May 19, 2000, and the amendments thereto
(the "Registration Statement"). All capitalized terms used but not otherwise
defined herein shall have the respective meanings given them in the prospectus
included in the amendment to the Registration Statement filed on or about the
date hereof.
In rendering the following opinions, we have examined such statutes,
regulations, records, certificates and other documents as we have considered
necessary or appropriate as a basis for such opinions, including the following:
(1) the Registration Statement (including all Exhibits thereto and all
amendments made thereto through the date hereof), (2) the Articles of
Incorporation of the Company, together with all amendments, (3) certain written
representations of the Company contained in a letter to us dated on or about the
date hereof, (4) copies of all leases entered into by the Company as of the date
hereof, and (5) such other documents or information as we have deemed necessary
to render the opinions set forth in this letter. In our review, we have assumed,
with your consent, that the documents listed above that we reviewed in proposed
form will be executed in substantially the same form, all of the representations
and statements set forth in such documents are true and correct, and all of the
obligations imposed by any such documents on the parties thereto, including
obligations imposed under the Articles of Incorporation of the Company, have
been or will be performed or satisfied in accordance with their terms. We also
have assumed the genuineness of all signatures, the proper execution of all
documents, the authenticity of all documents submitted to us as originals, the
conformity to originals of documents submitted to us as copies, and the
authenticity of the originals from which any copies were made.
Unless facts material to the opinions expressed herein are specifically
stated to have been independently established or verified by us, we have relied
as to such facts solely upon the representations made by the Company. To the
extent that the representations of the Company are with respect to matters set
forth in the Code or Treasury Regulations, we have reviewed with the individuals
making such representations the relevant provisions of the Code, the applicable
Treasury Regulations and published administrative interpretations thereof.
Based upon, and subject to, the foregoing, we are of the opinion as
follows:
1. The Company qualified as a REIT under the Code for the
taxable years ending December 31, 1998, and December 31, 1999,
the Company is organized in conformity with the requirements
for qualification as a REIT, and the Company's proposed method
of operation will enable it to meet the requirements for
qualification as a REIT under the Code.
2. The discussion of matters of law under the heading "FEDERAL
INCOME TAX CONSIDERATIONS" in the Registration Statement is
accurate in all material respects, and such discussion fairly
summarizes the federal income tax considerations that are
likely to be material to a holder of Shares of the Company.
3. Assuming that there is no waiver of the restrictions on
ownership of Shares in the Articles of Incorporation of the
Company and that a tax-exempt stockholder does not finance the
acquisition of its Shares with "acquisition indebtedness"
within the meaning of Section 524(c) of the Code or otherwise
use its Shares in an unrelated trade or business, the
distributions of the Company with respect to such tax-exempt
shareholder will not constitute unrelated business taxable
income as defined in Section 512(a) of the Code.
4. Assuming (i) the Company leases the Properties on
substantially the same terms and conditions described in the
"Business -- Description of Property Leases" section of the
Registration Statement, and (ii) the residual value of the
Properties for which the Company owns the underlying land
remaining after the end of their lease terms (including all
renewal periods) may reasonably be expected to be at least 20%
of the Company's cost of such properties, and the remaining
useful lives of the Properties for which the Company owns the
underlying land at the end of their lease terms (including all
renewal periods) may reasonably be expected to be at least 20%
of such properties' useful lives at the beginning of their
lease terms, the Company will be treated as the owner of the
Properties for which the Company owns the underlying land for
federal income tax purposes and will be entitled to claim
depreciation and other tax benefits associated with such
ownership.
5. Assuming (i) the Mortgage Loans are made on the terms and
conditions described in the "Business -- Mortgage Loans"
section of the Registration Statement, and (ii) the amount of
each loan does not exceed the fair market value of the real
property subject to the mortgage at the time of the loan
commitment, the income generated through the Company's
investments in Mortgage Loans will be treated as qualifying
income under the 75 percent gross income test.
6. Assuming (i) the Secured Equipment Leases are made on
substantially the same terms and conditions described in the
"Business -- General" section of the Registration Statement,
and (ii) each of the Secured Equipment Leases will have a term
that equals or exceeds the useful life of the Equipment
subject to the lease, the Company will not be treated as the
owner of the Equipment that is subject to the Secured
Equipment Leases and the Company will be able to treat the
Secured Equipment Leases as loans secured by personal property
for federal income tax purposes.
7. Assuming that each Joint Venture has the characteristics
described in the "Business -- Joint Venture Arrangements"
section of the Registration Statement, and is operated in the
same manner as the Company operates with respect to Properties
that it owns directly, (i) the Joint Ventures will be treated
as partnerships, as defined in Sections 7701(a)(2) and 761(a)
of the Code and not as associations taxable as corporations,
and the Company will be subject to tax as a partner pursuant
to Sections 701 through 761 of the Code and (ii) all material
allocations to the Company of income, gain, loss and deduction
as provided in the Joint Venture Agreements and as discussed
in the Registration Statement will be respected under Section
704(b) of the Code.
For a discussion relating the law to the facts and legal analysis
underlying the opinions set forth in this letter, we incorporate by reference
the discussion of federal income tax issues, which we assisted in preparing, in
the sections of the Registration Statement under the heading "FEDERAL INCOME TAX
CONSIDERATIONS."
The opinions set forth in this letter are based on existing law as
contained in the Internal Revenue Code of 1986, as amended (the "Code"),
Treasury Regulations promulgated thereunder (including any Temporary and
Proposed Regulations), and interpretations of the foregoing by the Internal
Revenue Service ("IRS") and by the courts in effect (or, in case of certain
Proposed Regulations, proposed) as of the date hereof, all of which are subject
to change, both retroactively or prospectively, and to possibly different
interpretations. Moreover, the Company's ability to achieve and maintain
qualification as a REIT depends upon its ability to achieve and maintain certain
diversity of stock ownership requirements and, through actual annual operating
results, certain requirements under the Code regarding its income, assets and
distribution levels. No assurance can be given that the actual ownership of the
Company's stock and its actual operating results and distributions for any
taxable year will satisfy the tests necessary to achieve and maintain its status
as a REIT. We assume no obligation to update the opinions set forth in this
letter. We believe that the conclusions expressed herein, if challenged by the
IRS, would be sustained in court. Because our positions are not binding upon the
IRS or the courts, however, there can be no assurance that contrary positions
may not be successfully asserted by the IRS.
The foregoing opinions are limited to the specific matters covered
thereby and should not be interpreted to imply the undersigned has offered its
opinion on any other matter.
<PAGE>
We hereby consent to the use and filing of this opinion as an exhibit
to the Registration Statement and to all references to us in the Registration
Statement.
Very truly yours,
SHAW PITTMAN
By: _/s/ Charles B. Temkin, P.C.
-----------------------------
Charles B. Temkin, P.C.
