EX-8.1: OPINION OF LATHAM & WATKINS LLP
Published on April 18, 2007
Exhibit 8.1
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April 18, 2007 Los Angeles Shanghai
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Kimco Realty Corporation Milan Singapore
3333 New Hyde Park Road Moscow Tokyo
New Hyde Park, New York 11042 Munich Washington, D.C.
File No. 013544-0108
Re: 647,758 shares of common stock (the "Common Stock") of Kimco Realty
Corporation (the "Company")
Ladies and Gentlemen:
In connection with the registration statement on Form S-3 filed by the
Company with the Securities and Exchange Commission (the "Commission")in
connection with the registration of the Common Stock under the Securities Act of
1933, as amended (the "Act"), on April 18, 2007 (the "Registration Statement"),
you have requested our opinion concerning the statements in the Registration
Statement under the caption "Material United States Federal Income Tax
Considerations."
This opinion is based on various facts and assumptions, and is
conditioned upon certain representations made by the Company as to factual
matters through certificates of an officer of the Company (the "Officer's
Certificates"). In addition, this opinion is based upon the factual
representations of the Company concerning its business, properties and governing
documents as set forth in the Registration Statement.
In our capacity as counsel to the Company, we have made such legal and
factual examinations and inquiries, including an examination of originals or
copies certified or otherwise identified to our satisfaction of such documents,
corporate records and other instruments as we have deemed necessary or
appropriate for purposes of this opinion. In our examination, we have assumed
the authenticity of all documents submitted to us as originals, the genuineness
of all signatures thereon, the legal capacity of natural persons executing such
documents and the conformity to authentic original documents of all documents
submitted to us as copies. For the purpose of our opinion, we have not made an
independent investigation, or audit of the facts set forth in the
above-referenced documents or in the Officer's Certificates. In addition, in
rendering this opinion we have assumed the truth and accuracy of all
representations and statements made to us which are qualified as to knowledge or
belief, without regard to such qualification. Further, with your permission, we
have assumed the accuracy of (i) the opinion of Venable LLP, counsel for the
Company, dated April 18, 2007 with respect to certain matters of Maryland law
and (ii) the opinion of Morris, Nichols, Arsht & Tunnell LLP, counsel for the
Company, dated April 18, 2007 with respect to certain matters of Delaware law.
APRIL 18, 2007
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We are opining herein as to the effect on the subject transaction only
of the federal income tax laws of the United States and we express no opinion
with respect to the applicability thereto, or the effect thereon, of other
federal laws, the laws of any state or any other jurisdiction or as to any
matters of municipal law or the laws of any other local agencies within any
state.
Based on such facts, assumptions and representations and subject to
the limitations set forth in the Registration Statement, it is our opinion that
the statements in the Registration Statement under the caption "Material United
States Federal Income Tax Considerations," insofar as they purport to summarize
certain provisions of the statutes or regulations referred to therein, are
accurate summaries in all material respects.
No opinion is expressed as to any matter not discussed herein.
This opinion is rendered to you as of the date of this letter, and we
undertake no obligation to update this opinion subsequent to the date hereof.
This opinion is based on various statutory provisions, regulations promulgated
thereunder and interpretations thereof by the Internal Revenue Service and the
courts having jurisdiction over such matters, all of which are subject to change
either prospectively or retroactively. Also, any variation or difference in the
facts from those set forth in the representations described above, including in
the Registration Statement or the Officer's Certificates may affect the
conclusions stated herein. Moreover, the Company's qualification and taxation as
a real estate investment trust depends upon the Company's ability to meet the
various qualification tests imposed under the Internal Revenue Code of 1986, as
amended, including through actual annual operating results, asset
diversification, distribution levels and diversity of stock ownership, the
results of which have not been and will not be reviewed by Latham & Watkins LLP.
Accordingly, no assurance can be given that the actual results of the Company's
operation in any taxable year will satisfy such requirements.
This opinion is furnished to you, and is for your use in connection
with the transactions set forth in the Registration Statement upon the
understanding that we are not hereby assuming professional responsibility to any
other person whatsoever. This opinion may not be relied upon by you for any
other purpose, or furnished to, quoted to, or relied upon by any other person,
firm or corporation, for any purpose, without our prior written consent, except
that this opinion may be relied upon by persons entitled to rely on it pursuant
to applicable provisions of federal securities law.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the caption "Legal
Matters" in the Registration Statement. 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 Act, or the rules or regulations of the
Commission promulgated thereunder.
Very truly yours,
/s/ Latham & Watkins LLP