Exhibit No. EX-99.12(c)
[SRSY LETTERHEAD]
March 26, 2004
Board of Trustees
Delaware Group Equity Funds II
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Re: Agreement and Plan of Reorganization (the "Agreement") made as of the
19th day of February, 2004, by Delaware Group Equity Funds II (the
"Trust"), a statutory trust created under the laws of the State of
Delaware, on behalf of its series, Delaware Decatur Equity Income Fund
("Acquiring Fund"), and Delaware Growth and Income Fund (the "Acquired
Fund")
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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 the Trust on behalf of the
Acquiring Fund of substantially all of the property, assets and goodwill of the
Acquired Fund in exchange solely for shares of beneficial interest, no par
value, of the Acquiring Fund- Class A ("Acquiring Fund Class A Shares"), shares
of beneficial interest, no par value, of the Acquiring Fund- Class B ("Acquiring
Fund Class B Shares"), shares of beneficial interest, no par value, of the
Acquiring Fund- Class C shares ("Acquiring Fund Class C Shares"), and shares of
beneficial interest, no par value of the Acquiring Fund-- Institutional Class
("Acquiring Fund Institutional Class Shares" and together with the Acquiring
Fund Class A Shares, Acquiring Fund Class B Share and Acquiring Fund Class C
Shares, which are all voting securities, the "Acquiring Fund Shares" ), and the
assumption by the Trust 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") and (d) 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 and Acquired Fund Class C 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 19th day of February, 2004, by the Trust, on behalf of
the Acquiring Fund and the Acquired Fund; (b) the proxy materials provided to
shareholders of the Acquired Fund in connection with the Special Shareholders'
Meeting of the Acquired Fund held on February 19, 2004; (c) certain
representations concerning the Reorganization made to us by the Trust, on behalf
of the Acquiring Fund and the Acquired Fund, in a letter dated March 26, 2004
(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 Trust, on behalf of
the Acquiring Fund and the Acquired Fund, of its 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 Trust, on behalf of the Acquiring
Fund and 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
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Xxxxxxx X. Xxxxxxx, III, a partner
