Staff feel that it is not appropriate for counsel to include in their opinion assumptions that are too broad, that “remove” the relevant issue or that assume material facts underlying the opinion, or easily verifiable facts. For example, the lawyer must not assume that the registrant: An independent legal advisor or public accountant (collectively, “legal or accounting advisor”) may provide tax advice under section 601(b)(8) that supports the tax issues and shareholder implications described in the filing. A decision by the Internal Revenue Service (“IRS”) will also satisfy this requirement.37 A BIA declaration under subsection 13.4(1) must be made to the trustee. Pursuant to subsection 13.4(2) of the BIA, the trustee must provide a copy to the Superintendent and to any creditor who requests it. The BIA`s notice under section 13.4(1) should contain details of the documents reviewed and the actions taken by appropriate counsel. Investigations typically include a review of the company`s documents (as listed in the company`s register and filed with the company registry), documents prepared for the specific transaction, as well as any relevant filings in all appropriate records covering the search for securities, charges, and similar matters. On the other hand, if a registrant claims that a swap bid or merger is a taxable transaction, no legal or accounting opinion is required. In such cases, while the registrant must provide accurate and complete information about the tax implications for investors, the registrant is not required to verify the disclosure through legal or accounting advice. If the registrant inserts a tax return and designates a lawyer or accountant as the source of the discussion, consent (but not opinion) is required.41 The registrant may nevertheless issue a lawyer`s or accountant`s opinion if desired. If the registrant inserts such a notice, it complies with all applicable requirements.
If there is no authority dealing directly with the tax consequences of the transaction, no conflicting authority, or if there are significant doubts about the tax consequences of the transaction, an advisor or auditor may issue an opinion that clearly indicates that the opinion is subject to a certain degree of uncertainty. For example: “In the opinion of counsel, the registrant should be taxed as a partnership. In such cases, staff expect legal counsel or auditors to explain why they cannot provide an “opinion of intent” and describe the degree of uncertainty in the opinion.44 The registrant should disclose a risk factor and/or other appropriate information setting out the risks of uncertain tax treatment for investors.45 The opinion may also specify: the position the holder occupies when challenged by the IRS. Summary: This Employee Legal Bulletin contains the views of the Corporate Finance Division (the “Division”) regarding the legality and tax opinions filed in connection with the offerings of registered securities. The latter form of opinion is sometimes made available to the public, either because of public pressure (see, for example, Lord Goldsmith`s opinion on the war in Iraq, note by Yoo) or because a general clarification of the law is needed (see, for example, Yorke-Talbot`s opinion on slavery). In the United States, several attorneys general give the attorney general`s opinions. Despite the increasing effectiveness of due diligence, the fact remains that some transactions require legal advice due to the particular circumstances of this transaction. However, the old habit of seeking the advice of a lawyer as a condition of closing and then letting lawyers negotiate the terms of the transaction at a later date may soon become obsolete.
The request for expert advice relates only to the legality of the declarant`s actions under state law and not to compliance with federal regulations. Therefore, counsel may exclude federal statutes, including federal securities laws, from the scope of the advisory opinion as long as counsel is clear about the necessary constitutional issues. Legal counsel may also exclude sovereign securities matters. This article contains only general information on legal issues and developments and is not intended to be specific legal advice. For more information, please see our disclaimer. Sometimes it is not possible for the person seeking expert advice to sufficiently inform the lawyer of the importance of the matter or to provide full access to the required information for reasons of confidentiality. In these circumstances, the expert opinion may contain language limiting the lawyer`s liability. Such an opinion is called a qualified opinion. If the reservations applied to all the opinions expressed, it was acceptable to state the opinions and then list the reservations in a list or in subsequent paragraphs.
IMF staff accept another practice of opinion related to medium-term debt programs (“MTNs”) that allow issuers to offer debt on an ongoing or episodic basis. In MTN programmes, the issuer typically submits a registration statement that allows securities to be sold by various methods and then submits a prospectus supplement to the MTN programme describing the range of possible conditions for the securities and distribution plans. The terms of the securities issued in connection with a withdrawal and the method of distribution will subsequently be set out in a price supplement filed separately from the MTN prospectus supplement. The Issuer may provide a qualified opinion upon filing of the Registration Statement and an updated and unqualified opinion upon withdrawal, as described above.
