EXHIBIT 8
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XXXXXX & XXXXXX LLP
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April 6, 2006
Health Care REIT, Inc.
Xxx XxxXxxx
Xxxxx 0000
Xxxxxx, Xxxx 00000
Re: Federal Income Tax Consequences
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Ladies and Gentlemen:
We have acted as special tax counsel to Health Care REIT, Inc., a
Delaware corporation (the "Company"), in connection with the issuance and sale
of 3,450,000 shares of common stock, par value $1.00 per share (the "Common
Stock"), pursuant to a prospectus supplement dated April 6, 2006 ("Prospectus
Supplement") to the prospectus dated May 24, 2005 (collectively, the
"Prospectus") included in the Company's Registration Statement on Form S-3 (File
No. 333-120917) (the "Registration Statement"), filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended. You have
requested our opinion regarding certain U.S. federal income tax matters in
connection with the filing of the Registration Statement. Certain capitalized
terms used herein without definition are as defined in the Registration
Statement.
In giving this opinion, we have examined the following:
- the Second Restated Certificate of Incorporation, as amended, of the
Company;
- the Amended and Restated Bylaws of the Company;
- the Company's Annual Report on Form 10-K for the year ended December
31, 2005;
- the Prospectus; and
- such other documents as we have deemed necessary or appropriate for
purposes of this opinion.
Health Care REIT, Inc.
April 6, 2006
Page 2
In connection with the opinions rendered below, we have assumed with
your consent that:
1. Each of the documents referred to above has been duly authorized,
executed and delivered; is authentic, if an original, or is accurate, if a copy;
and has not been amended;
2. During its taxable years ended December 31, 1998 through December
31, 2005, the Company has operated, and, in future taxable years, the Company
will operate, in a manner that has caused or will make, as the case may be, the
factual representations relating to the ownership, operation, future method of
operations, and compliance of the Company with the real estate investment trust
("REIT") provisions of the Internal Revenue Code of 1986, as amended (the
"Code"), and the Treasury Regulations (the "Regulations") thereunder, as in
effect as of the date hereof, contained in a certificate, dated on or about the
date hereof and executed by a duly appointed officer of the Company (the
"Officer's Certificate"), true for such years;
3. The Company will not make any amendments to its organizational
documents after the date of this opinion that would affect its qualification as
a REIT under sections 856-860 of the Code for any taxable year; and
4. No action will be taken by the Company after the date hereof that
would have the effect of altering the facts upon which the opinions set forth
below are based.
In our capacity as special tax counsel to the Company, we have made
such legal and factual examinations and inquiries as we have deemed necessary or
appropriate for purposes of our opinions rendered below. For the purposes of
rendering these opinions, we have not made an independent investigation of the
facts set forth in any documents delivered to us, including, without limitation,
the Officer's Certificate. We have relied completely upon the Company's
representations that the information presented in such documents accurately
reflects all material facts. In the course of our representation of the Company,
we have not been made aware of any facts inconsistent with such factual
representations. In addition, where such factual representations involve terms
defined or used in the Code, the Regulations, published rulings of the Internal
Revenue Service (the "Service") or other relevant authority, we have explained
such terms to the Company's representatives and are satisfied that the Company's
representatives understand such terms and are capable of making such factual
representations.
Based on the Code, Regulations, documents, assumptions and statements
set forth above, the factual representations set forth in the Officer's
Certificate and our review of
Health Care REIT, Inc.
April 6, 2006
Page 3
the discussions in the Prospectus under the caption "U.S. Federal Income Tax
Considerations" and in the Company's Annual Report on Form 10-K for the year
ended December 31, 2005 under the caption "Taxation," we are of the opinion
that:
(a) the Company qualified to be taxed as a REIT pursuant to
sections 856 through 860 of the Code for its taxable years ended
December 31, 2000 through December 31, 2005, and the Company's
organization and current and proposed method of operation will enable
it to continue to meet the requirements for qualification and taxation
as a REIT under the Code for all future taxable years; and
(b) the descriptions of the law and the legal conclusions
contained in the Prospectus under the caption "U.S. Federal Income Tax
Considerations" and in the Company's Annual Report on Form 10-K for the
year ended December 31, 2005 under the caption "Taxation," fairly
summarize the federal income tax considerations that are likely to be
material to a holder of the Common Stock.
We will not review on a continuing basis the Company's compliance with
the documents or assumptions set forth above, or the factual representations set
forth in the Officer's Certificate. Accordingly, no assurance can be given that
the actual results of the Company's operations for any given taxable year will
satisfy the requirements for qualification and taxation as a REIT.
The foregoing opinions are based on current provisions of the Code and
the Regulations, published administrative interpretations thereof and published
court decisions and assume that none of these will change. No assurance,
however, can be given that the law will not change in a way that will prevent
the Company from qualifying as a REIT.
The foregoing opinions are limited to the U.S. federal income tax
matters addressed herein, and no other opinions are rendered with respect to
other federal tax matters or to any issues arising under the tax laws of any
other country, or any state or locality. You must judge for yourselves whether
the matters addressed in this opinion letter are sufficient for your purposes.
This letter speaks only as of this date, and we undertake no obligation to
update the opinions expressed herein after the date of this letter. This opinion
letter may not be distributed, or quoted in whole or in part, or
Health Care REIT, Inc.
April 6, 2006
Page 4
otherwise reproduced in any document, or filed with any governmental agency, in
each case without our express written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not acknowledge that we
are in the category of persons whose consent is required by Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations promulgated
thereunder by the Securities and Exchange Commission.
Very truly yours,
/s/ Xxxxxx & Xxxxxx LLP
XXXXXX & XXXXXX LLP
