EX-8.1: OPINION AS TO TAX MATTERS
Published on October 22, 2010
Exhibit
8.1
[CC
LETTERHEAD]
October
22, 2010
MFA Financial, Inc.
350 Park Avenue, 21st Floor
New York, New York 10022
|
Re:
|
REIT
Status of MFA Financial, Inc.
|
Ladies
and Gentlemen:
We have acted as counsel to MFA
Financial, Inc., a Maryland corporation (the “Company”), in connection with the
filing of a registration statement on Form S-3 on the date hereof with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended. In connection therewith, you have requested our opinions
regarding (i) the qualification of the Company as a real estate investment trust (“REIT”)
under the Internal Revenue Code of 1986, as amended (the “Code”) and
(ii) the information contained in the Registration Statement under the
heading “Material U.S. Federal Income Tax Considerations.” Except as
otherwise indicated, capitalized terms used herein shall have the meanings given
to them in the Registration Statement.
In
rendering the opinions expressed herein, we have examined and, with your
permission, relied on the following items:
1. the
opinion of Kutak Rock LLP (the “Kutak Opinion”), dated February 25, 2002,
regarding the qualification of the Company as a real estate investment trust
(“REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”) for
its taxable year ended December 31, 1998 through the date of such
opinion;
2. a
reliance letter addressed to us from Kutak Rock LLP allowing us to rely on the
Kutak Opinion for purposes of rendering this opinion with respect to the
Company’s taxable years ended prior to February 25, 2002;
3. a
Certificate of Representations, (the “Certificate of Representations”) dated as
of the date hereof, provided to us by the Company and Retirement Centers
Corporation (“RCC”);
4. the
Registration Statement; and
5. such
other documents, records and instruments as we have deemed necessary in order to
enable us to render the opinion referred to in this letter.
In our
examination of the foregoing documents, we have assumed, with your consent, that
(i) all documents reviewed by us are original documents, or true and
accurate copies of original documents and have not been subsequently amended,
(ii) the signatures of each original document are genuine, (iii) each
party who executed the document had proper authority and capacity, (iv) all
representations and statements set forth in such documents are true and correct,
(v) all obligations imposed by any such documents on the parties thereto
have been performed or satisfied in accordance with their terms, (vi) the
Company and RCC at all times have operated in accordance with the method of
operation described in their organizational documents, and (vii) no action
will be taken following the Offering that is inconsistent with the Company’s
status as a REIT for any period prior or subsequent to the
Offering.
For
purposes of rendering the opinions stated below, we have assumed, with your
consent, the accuracy of the representations contained in the Certificate of
Representations provided to us by the Company and RCC, and that each
representation contained in such Certificate of Representations to the best of
such entities’ knowledge or belief is accurate and complete without regard to
such qualification as to the best of such entities’ knowledge or
belief. These representations generally relate to the classification
and operation of the Company as a REIT and to the organization and operation of
the Company and RCC. In rendering the opinion stated below, with your
consent, we have also relied on, and assumed the accuracy of, and our opinion is
therefore limited by, the Kutak Opinion with respect to the qualification of the
Company as a REIT for all of its taxable years ended on or prior to
December 31, 2001.
Based
upon, subject to, and limited by the assumptions and qualifications set forth
herein, we are of the opinion that:
6. Commencing
with its taxable year ended December 31, 1998, the Company was organized in
conformity with the requirements for qualification and taxation as a REIT under
the Code and its method of operation as described in the Prospectus and as set
forth in the Certificate of Representations has enabled it to meet the
requirements for qualification as a REIT under the Code, and the Company’s
proposed method of operation as described in the Prospectus and the Certificate
of Representations will enable the Company to continue to so
qualify. To the extent that the foregoing opinion refers to any
period beginning prior to January 1, 2002, it is based solely on the Kutak
Opinion (which we have relied upon with your express permission);
and
7. The
statements under the caption “Material U.S. Federal Income Tax Considerations”
in the Registration Statement in so far as such statements constitute a summary
of the legal matters referred to therein, constitute accurate summaries thereof
in all material respects.
The
opinions set forth in this letter are based on relevant provisions of the Code,
Treasury Regulations promulgated thereunder, interpretations of the foregoing as
expressed in court decisions, legislative history, and existing administrative
rulings and practices of the Internal Revenue Service (“IRS”) (including its
practices and policies in issuing private letter rulings, which are not binding
on the IRS except with respect to a taxpayer that receives such a ruling), all
as of the date hereof. These provisions and interpretations are
subject to change, which may or may not be retroactive in effect, and which may
result in modifications of our opinions. Our opinions do not
foreclose the possibility of a contrary determination by the IRS or a court of
competent jurisdiction, or of a contrary determination by the IRS or the
Treasury Department in regulations or rulings issued in the
future. In this regard, an opinion of counsel with respect to an
issue represents counsel’s best professional judgment with respect to the
outcome on the merits with respect to such issue, if such issue were to be
litigated, but an opinion is not binding on the IRS or the courts and is not a
guarantee that the IRS will not assert a contrary position with respect to such
issue or that a court will not sustain such a position asserted by the
IRS.
The
opinions set forth above represent our conclusions based upon the documents,
facts, representations and assumptions referred to above. Any
material amendments to such documents, changes in any significant facts or
inaccuracy of such representations or assumptions could affect the opinions
referred to herein. Moreover, the Company’s qualification and
taxation as a REIT depended and depends upon the ability of the Company to meet
for each taxable year, through actual annual operating results, requirements
under the Code regarding gross income, assets, distributions and diversity of
stock ownership. We have not undertaken to review the Company’s
compliance with these requirements on a continuing
basis. Accordingly, no assurance can be given that the actual results
of the Company’s operations for any single taxable year have satisfied or will
satisfy the tests necessary to qualify as or be taxed as a REIT under the
Code. Although we have made such inquiries and performed such
investigations as we have deemed necessary to fulfill our professional
responsibilities as counsel, we have not undertaken an independent investigation
of all of the facts referred to in this letter, the Certificate of
Representations and the Kutak Opinion.
The
opinions set forth in this letter are: (i) limited to those matters
expressly covered and no opinion is expressed in respect of any other matter,
(ii) as of the date hereof, and (iii) rendered by us solely for
your benefit and may not be relied upon by any person or entity other than you
without our express permission. We hereby consent to the filing of
this opinion with the SEC
as an exhibit to the Registration Statement and to the references therein to us.
In giving such consent, we do not thereby admit that we are within the category
of persons whose consent is required under Section 7 of the Securities Act or
the rules and regulations of the SEC promulgated thereunder.
Very
truly yours,
/s/
Clifford Chance US LLP