February 12, 2026 |
Voter ID may be a surreptitions poll tax
Are government fees taxes?
Where is the 24th Amendment when We Really Need It?
February 12, 2026
A candidate for office in Missouri complained about having to bend over backwards to regain her right to vote, though it had never lapsed, all thanks to rules she considers bogus. Comments on her social media post ran from the irrational to the uninformed to the essential.
I did your homework for you; don't tell the teacher.
I did your homework for you; don't tell the teacher.
Part One. Is it a tax?
Courts and commentators typically argue that a “fee” for a government service is actually a “tax” when the charge functions like general‑revenue raising rather than cost‑recovery or regulation, regardless of the label used.[1][2][3]
## Core arguments used to treat a fee as a tax
- **Primary purpose is revenue, not regulation or service**: If the charge is designed mainly to raise money for the general support of government (or broad public programs), rather than to fund or regulate the specific service or activity at issue, it is characterized as a tax.[3][1]
- **No reasonable relationship to cost**: A classic argument is that a true user or regulatory fee must bear a “fair approximation” or “reasonable relationship” to the government’s costs in providing the specific service or mitigating the specific harms; when the amount substantially exceeds such costs or is untethered to them, courts say it is a tax “in fee’s clothing.”[4][1][3]
- **Benefits the general public, not a narrow class of payers**: If the proceeds are used for programs that benefit the community at large rather than the payers as a class (or those they burden), this supports treating the charge as a tax.[2][3]
- **Compulsory, not meaningfully voluntary**: User‑fee rhetoric emphasizes voluntary use of a service, but when payment is effectively unavoidable (for example, tied to essential utilities or legal permissions with no realistic alternative), courts and critics argue the charge looks like a tax.[5][6][1]
- **Imposed by legislature on a broad base**: A “classic tax” is described as an assessment imposed by a legislative body on many or all citizens to raise money for public purposes; when a purported fee shares this structural pattern, courts have reasoned that it should be treated as a tax.[2][3]
- **Lack of earmarking or weak earmarking**: When revenues go into a general fund, or the “special fund” is used for broadly defined purposes not tightly linked to the regulated activity or service, that weakens the fee characterization and supports the view that the charge is actually a tax.[7][3][2]
- **Absence of regulatory conditions or quid pro quo**: Some decisions and commentary stress that a genuine regulatory fee is part of a regulatory program—tied to permits, compliance, or mitigation; a flat payment that simply confers the right to continue a business or activity with no further regulatory conditions tends to be treated as a tax.[8][1][4]
- **Use to circumvent tax‑law or constitutional constraints**: Another line of argument is that governments sometimes relabel taxes as fees to avoid voter approval, statutory tax‑limitation rules, or constitutional provisions; when challengers can show this circumvention, courts may recharacterize the “fee” as a tax.[9][10][2]
## Common doctrinal formulations
- **“Regulation vs. revenue” test**: If a charge is exacted solely for revenue, with no genuine regulatory program or cost‑based justification, it is a tax.[4][8]
- **Three‑part “classic tax” test**: Some courts ask whether the charge (1) is imposed by a legislature, (2) on many or all citizens, and (3) funds benefits for the whole community; if so, it is a tax, not a fee.[3]
- **Cost‑relationship / fair‑approximation test**: Under various constitutional doctrines, courts ask whether the amount is a fair approximation of the payers’ use of the service or the costs they impose; failure of that relationship suggests a tax rather than a fee.[1][2]
As a concrete illustration, litigation over “fees” used to finance unrelated pension or general obligations has been a fertile ground for arguments that the charges are really taxes because they are mandatory, bear no relationship to the cost of a service, and support broad governmental spending rather than a specific, regulated activity.[10][5][3]
Sources (Assisted by Perplexity)
[1] [PDF] Featured News https://dwuconsulting.com/images/Support/111104%20User%20Fee%20vs.%20Tax.pdf
[2] [PDF] TAX OR FEE? A PROPOSED FRAMEWORK FOR DECIDING WHEN ... https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID4426360_code1793832.pdf?abstractid=4426360&mirid=1
[3] Is it a tax or a fee? - Washington Policy Center https://www.washingtonpolicy.org/publications/detail/is-it-a-tax-or-a-fee
[4] Sinclair Paint Co. v. State Bd. of Equalization (1997) - Justia Law https://law.justia.com/cases/california/supreme-court/4th/15/866.html
[5] The difference between a tax and a fee | Avalara https://www.avalara.com/blog/en/north-america/2025/11/tax-vs-fee-explained.html
[6] Supreme Court Rules Against Taxpayers, Approves Double ... https://www.ntu.org/foundation/detail/supreme-court-rules-against-taxpayers-approves-double-delegation-of-tax-authority-of-universal-service-fee-to-private-company
[7] [PDF] Taxes vs. Fees: A Curious Confusion - UW Law Digital Commons https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=1778&context=faculty-articles
[8] Sinclair Paint Co. v. State Bd. of Equalization - 15 Cal.4th 866 ... https://scocal.stanford.edu/opinion/sinclair-paint-co-v-state-bd-equalization-31842
[9] When a fee becomes a tax - NH Business Review https://www.nhbr.com/when-a-fee-becomes-a-tax/
[10] The Empire of Fees | City Journal https://www.city-journal.org/article/the-empire-of-fees
[11] CESS – WHETHER A 'TAX' OR 'FEE'? - TaxTMI https://www.taxtmi.com/article/detailed?id=1573
[12] [PDF] 91534-2 - Washington Courts - | WA.gov https://www.courts.wa.gov/opinions/pdf/915342.pdf
[13] [PDF] Should U.S. Tax Law Be Constitutionalized? https://repository.law.umich.edu/cgi/viewcontent.cgi?article=3991&context=facarticles
[14] [PDF] Watson v. City of Seattle - Washington Courts - | WA.gov https://www.courts.wa.gov/opinions/pdf/937231.pdf
[15] The Cap-and-Trade Auction: Still Not a Tax - Legal Planet https://legal-planet.org/2016/04/22/the-cap-and-trade-auction-still-not-a-tax/
## Core arguments used to treat a fee as a tax
- **Primary purpose is revenue, not regulation or service**: If the charge is designed mainly to raise money for the general support of government (or broad public programs), rather than to fund or regulate the specific service or activity at issue, it is characterized as a tax.[3][1]
- **No reasonable relationship to cost**: A classic argument is that a true user or regulatory fee must bear a “fair approximation” or “reasonable relationship” to the government’s costs in providing the specific service or mitigating the specific harms; when the amount substantially exceeds such costs or is untethered to them, courts say it is a tax “in fee’s clothing.”[4][1][3]
- **Benefits the general public, not a narrow class of payers**: If the proceeds are used for programs that benefit the community at large rather than the payers as a class (or those they burden), this supports treating the charge as a tax.[2][3]
- **Compulsory, not meaningfully voluntary**: User‑fee rhetoric emphasizes voluntary use of a service, but when payment is effectively unavoidable (for example, tied to essential utilities or legal permissions with no realistic alternative), courts and critics argue the charge looks like a tax.[5][6][1]
- **Imposed by legislature on a broad base**: A “classic tax” is described as an assessment imposed by a legislative body on many or all citizens to raise money for public purposes; when a purported fee shares this structural pattern, courts have reasoned that it should be treated as a tax.[2][3]
- **Lack of earmarking or weak earmarking**: When revenues go into a general fund, or the “special fund” is used for broadly defined purposes not tightly linked to the regulated activity or service, that weakens the fee characterization and supports the view that the charge is actually a tax.[7][3][2]
- **Absence of regulatory conditions or quid pro quo**: Some decisions and commentary stress that a genuine regulatory fee is part of a regulatory program—tied to permits, compliance, or mitigation; a flat payment that simply confers the right to continue a business or activity with no further regulatory conditions tends to be treated as a tax.[8][1][4]
- **Use to circumvent tax‑law or constitutional constraints**: Another line of argument is that governments sometimes relabel taxes as fees to avoid voter approval, statutory tax‑limitation rules, or constitutional provisions; when challengers can show this circumvention, courts may recharacterize the “fee” as a tax.[9][10][2]
## Common doctrinal formulations
- **“Regulation vs. revenue” test**: If a charge is exacted solely for revenue, with no genuine regulatory program or cost‑based justification, it is a tax.[4][8]
- **Three‑part “classic tax” test**: Some courts ask whether the charge (1) is imposed by a legislature, (2) on many or all citizens, and (3) funds benefits for the whole community; if so, it is a tax, not a fee.[3]
- **Cost‑relationship / fair‑approximation test**: Under various constitutional doctrines, courts ask whether the amount is a fair approximation of the payers’ use of the service or the costs they impose; failure of that relationship suggests a tax rather than a fee.[1][2]
As a concrete illustration, litigation over “fees” used to finance unrelated pension or general obligations has been a fertile ground for arguments that the charges are really taxes because they are mandatory, bear no relationship to the cost of a service, and support broad governmental spending rather than a specific, regulated activity.[10][5][3]
Sources (Assisted by Perplexity)
[1] [PDF] Featured News https://dwuconsulting.com/images/Support/111104%20User%20Fee%20vs.%20Tax.pdf
[2] [PDF] TAX OR FEE? A PROPOSED FRAMEWORK FOR DECIDING WHEN ... https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID4426360_code1793832.pdf?abstractid=4426360&mirid=1
[3] Is it a tax or a fee? - Washington Policy Center https://www.washingtonpolicy.org/publications/detail/is-it-a-tax-or-a-fee
[4] Sinclair Paint Co. v. State Bd. of Equalization (1997) - Justia Law https://law.justia.com/cases/california/supreme-court/4th/15/866.html
[5] The difference between a tax and a fee | Avalara https://www.avalara.com/blog/en/north-america/2025/11/tax-vs-fee-explained.html
[6] Supreme Court Rules Against Taxpayers, Approves Double ... https://www.ntu.org/foundation/detail/supreme-court-rules-against-taxpayers-approves-double-delegation-of-tax-authority-of-universal-service-fee-to-private-company
[7] [PDF] Taxes vs. Fees: A Curious Confusion - UW Law Digital Commons https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=1778&context=faculty-articles
[8] Sinclair Paint Co. v. State Bd. of Equalization - 15 Cal.4th 866 ... https://scocal.stanford.edu/opinion/sinclair-paint-co-v-state-bd-equalization-31842
[9] When a fee becomes a tax - NH Business Review https://www.nhbr.com/when-a-fee-becomes-a-tax/
[10] The Empire of Fees | City Journal https://www.city-journal.org/article/the-empire-of-fees
[11] CESS – WHETHER A 'TAX' OR 'FEE'? - TaxTMI https://www.taxtmi.com/article/detailed?id=1573
[12] [PDF] 91534-2 - Washington Courts - | WA.gov https://www.courts.wa.gov/opinions/pdf/915342.pdf
[13] [PDF] Should U.S. Tax Law Be Constitutionalized? https://repository.law.umich.edu/cgi/viewcontent.cgi?article=3991&context=facarticles
[14] [PDF] Watson v. City of Seattle - Washington Courts - | WA.gov https://www.courts.wa.gov/opinions/pdf/937231.pdf
[15] The Cap-and-Trade Auction: Still Not a Tax - Legal Planet https://legal-planet.org/2016/04/22/the-cap-and-trade-auction-still-not-a-tax/
Part Two: Case Law
Here are ten decisions in which a court agreed that what was styled as a “fee” (or similar charge) actually constituted a tax:
1. **Heos v. City of East Lansing**, 511 Mich ___ (2025)
– The Michigan Supreme Court held that a municipal “franchise fee” on electric service functioned as an unauthorized tax under the Headlee Amendment because it was imposed for general revenue‑raising, was not proportionate to the city’s costs, and was not voluntary.[1][2]
2. **Margola Associates v. City of Seattle**, 121 Wn.2d 625, 854 P.2d 23 (Wash. 1993)
– The Washington Supreme Court stated that a governmentally imposed fee constitutes a tax rather than a regulatory fee when those paying are not directly benefited by the services financed and when the primary purpose is raising revenue.[3]
3. **Watson v. City of Seattle**, 189 Wn.2d 149, 401 P.3d 1 (Wash. 2017)
– In distinguishing the City’s firearms and ammunition charge from a regulatory fee, the Washington Supreme Court treated the charge as a tax, applying the Covell factors and emphasizing its primary revenue‑raising purpose.[4]
4. **Bolt v. City of Lansing**, 459 Mich. 152, 587 N.W.2d 264 (Mich. 1998)
– The Michigan Supreme Court held that a “stormwater service charge” was in substance a tax violating the Headlee Amendment because it was not proportionate to the cost of the service, did not serve a regulatory purpose, and was not voluntary.[2]
5. **Brown v. Horry County**, 682 S.E.2d 225 (S.C. 2009) (as discussed in later S.C. Supreme Court interpretation)
– The South Carolina Supreme Court treated certain “road maintenance fees” as taxes where they funded general public benefits and did not confer a distinct benefit on payers as opposed to the public at large.[5]
6. **Burns v. Greenville County Council**, 725 S.E.2d 744 (S.C. 2012) (again as interpreted in later cases)
– The court concluded that a county’s “road maintenance fee” was actually a tax when the charge supported services benefiting the entire community rather than specifically the payers, leading to legislative revisions to the fee definition.[5]
7. **South Carolina Public Interest Foundation v. Greenville County**, 434 S.C. 120, 862 S.E.2d 569 (S.C. 2021)
– The South Carolina Supreme Court held that a telecommunications “fee” was in fact an invalid tax because there was no proof that the enhanced system benefitted payers in a manner different from the general public; the opinion explicitly warns against “taxes masquerading as ‘service or user fees.’”[5]
8. **Morgan v. Grand Rapids**, 267 Mich. App. 513, 705 N.W.2d 123 (Mich. Ct. App. 2005) (as applied in Heos)
– Applying Bolt’s criteria, the Michigan Court of Appeals treated certain municipal exactions styled as fees as taxes where they did not serve a regulatory purpose and were not proportionate to costs, a framework later relied on in Heos.[1][2]
9. **Hill v. City of Greeley**, 909 P.2d 1234 (Colo. Ct. App. 1995) (commonly cited in fee‑vs‑tax analyses)
– The Colorado Court of Appeals concluded that a municipal “service charge” constituted a tax subject to constitutional constraints where the charge was imposed primarily for revenue and was not sufficiently tied to a particularized service to payers.[6][2]
10. **En banc Fifth Circuit decision on FCC’s Universal Service “fee” (USTelecom-type litigation)**
– The U.S. Court of Appeals for the Fifth Circuit (en banc) concluded that the FCC’s so‑called “Universal Service” fee was, in substance, a tax; a majority described the assessment as a tax whose authority had been improperly delegated.[7]
These cases collectively illustrate recurring themes: lack of proportionality to cost, absence of a distinct benefit to payers, primary revenue‑raising purpose, and the use of “fee” labels to avoid tax‑law or constitutional limitations.[2][3][7][1][5]
Sources
[1] [PDF] MSC 165763 JAMES HEOS V CITY OF EAST LANSING Opinion on ... https://www.courts.michigan.gov/49d93a/siteassets/case-documents/uploads/opinions/final/sct/165763_68_01.pdf
[2] [PDF] Bolt Refresher - Michigan Municipal League https://www.mml.org/resources/publications/one_pagers/FS%20Bolt%20Refresher%20with%20Plus.pdf
[3] Margola Associates v. City of Seattle :: 1993 - Justia Law https://law.justia.com/cases/washington/supreme-court/1993/57920-2-1.html
[4] [PDF] Watson v. City of Seattle - Washington Courts - | WA.gov https://www.courts.wa.gov/opinions/pdf/937231.pdf
[5] Supreme Court Decision Draws New Distinction Between Taxes and ... https://www.masc.sc/uptown/10-2021/supreme-court-decision-draws-new-distinction-between-taxes-and-fees
[6] [PDF] Featured News https://dwuconsulting.com/images/Support/111104%20User%20Fee%20vs.%20Tax.pdf
[7] En Banc Fifth Circuit Concludes FCC's "Universal Service" Fee Is ... https://reason.com/volokh/2024/07/24/en-banc-fifth-circuit-concludes-fccs-universal-service-fee-unconstitutional/
[8] [PDF] Slip Opinion (not the court's final written decision) - Washington Courts https://www.courts.wa.gov/opinions/pdf/963606.pdf
[9] [PDF] 1,00~ on::AtJtlAJ}~1 - Steptoe https://www.steptoe.com/a/web/3910/3ZEsAb/93723-1-opinion.pdf
[10] [PDF] APPENDIX - Michigan Association of Municipal Attorneys https://mama-online.org/wp-content/uploads/2025/06/Full-Appendix-2025-GLS-Amicus-Committee-Update.pdf
[11] [PDF] 22-800 Moore v. United States (06/20/2024) - Supreme Court https://www.supremecourt.gov/opinions/23pdf/22-800_jg6o.pdf
[12] [PDF] Answer to Petition for Review - Supreme Court of California - CA.gov https://supreme.courts.ca.gov/sites/default/files/supremecourt/default/documents/2-s262634-apps-answer-pet-rev-071020.pdf
[13] Michigan Appellate Court Ruling Upholds Stormwater Utilities https://crcmich.org/dennis_platt_stormwater-utility_swu_20241030
[14] State Taxation and the Dormant Commerce Clause https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/state-taxation-and-the-dormant-commerce-clause
[15] Commonwealth Court: Stormwater Fee Not an Impermissible Tax https://www.mcneeslaw.com/stormwater-fee-tax/
1. **Heos v. City of East Lansing**, 511 Mich ___ (2025)
– The Michigan Supreme Court held that a municipal “franchise fee” on electric service functioned as an unauthorized tax under the Headlee Amendment because it was imposed for general revenue‑raising, was not proportionate to the city’s costs, and was not voluntary.[1][2]
2. **Margola Associates v. City of Seattle**, 121 Wn.2d 625, 854 P.2d 23 (Wash. 1993)
– The Washington Supreme Court stated that a governmentally imposed fee constitutes a tax rather than a regulatory fee when those paying are not directly benefited by the services financed and when the primary purpose is raising revenue.[3]
3. **Watson v. City of Seattle**, 189 Wn.2d 149, 401 P.3d 1 (Wash. 2017)
– In distinguishing the City’s firearms and ammunition charge from a regulatory fee, the Washington Supreme Court treated the charge as a tax, applying the Covell factors and emphasizing its primary revenue‑raising purpose.[4]
4. **Bolt v. City of Lansing**, 459 Mich. 152, 587 N.W.2d 264 (Mich. 1998)
– The Michigan Supreme Court held that a “stormwater service charge” was in substance a tax violating the Headlee Amendment because it was not proportionate to the cost of the service, did not serve a regulatory purpose, and was not voluntary.[2]
5. **Brown v. Horry County**, 682 S.E.2d 225 (S.C. 2009) (as discussed in later S.C. Supreme Court interpretation)
– The South Carolina Supreme Court treated certain “road maintenance fees” as taxes where they funded general public benefits and did not confer a distinct benefit on payers as opposed to the public at large.[5]
6. **Burns v. Greenville County Council**, 725 S.E.2d 744 (S.C. 2012) (again as interpreted in later cases)
– The court concluded that a county’s “road maintenance fee” was actually a tax when the charge supported services benefiting the entire community rather than specifically the payers, leading to legislative revisions to the fee definition.[5]
7. **South Carolina Public Interest Foundation v. Greenville County**, 434 S.C. 120, 862 S.E.2d 569 (S.C. 2021)
– The South Carolina Supreme Court held that a telecommunications “fee” was in fact an invalid tax because there was no proof that the enhanced system benefitted payers in a manner different from the general public; the opinion explicitly warns against “taxes masquerading as ‘service or user fees.’”[5]
8. **Morgan v. Grand Rapids**, 267 Mich. App. 513, 705 N.W.2d 123 (Mich. Ct. App. 2005) (as applied in Heos)
– Applying Bolt’s criteria, the Michigan Court of Appeals treated certain municipal exactions styled as fees as taxes where they did not serve a regulatory purpose and were not proportionate to costs, a framework later relied on in Heos.[1][2]
9. **Hill v. City of Greeley**, 909 P.2d 1234 (Colo. Ct. App. 1995) (commonly cited in fee‑vs‑tax analyses)
– The Colorado Court of Appeals concluded that a municipal “service charge” constituted a tax subject to constitutional constraints where the charge was imposed primarily for revenue and was not sufficiently tied to a particularized service to payers.[6][2]
10. **En banc Fifth Circuit decision on FCC’s Universal Service “fee” (USTelecom-type litigation)**
– The U.S. Court of Appeals for the Fifth Circuit (en banc) concluded that the FCC’s so‑called “Universal Service” fee was, in substance, a tax; a majority described the assessment as a tax whose authority had been improperly delegated.[7]
These cases collectively illustrate recurring themes: lack of proportionality to cost, absence of a distinct benefit to payers, primary revenue‑raising purpose, and the use of “fee” labels to avoid tax‑law or constitutional limitations.[2][3][7][1][5]
Sources
[1] [PDF] MSC 165763 JAMES HEOS V CITY OF EAST LANSING Opinion on ... https://www.courts.michigan.gov/49d93a/siteassets/case-documents/uploads/opinions/final/sct/165763_68_01.pdf
[2] [PDF] Bolt Refresher - Michigan Municipal League https://www.mml.org/resources/publications/one_pagers/FS%20Bolt%20Refresher%20with%20Plus.pdf
[3] Margola Associates v. City of Seattle :: 1993 - Justia Law https://law.justia.com/cases/washington/supreme-court/1993/57920-2-1.html
[4] [PDF] Watson v. City of Seattle - Washington Courts - | WA.gov https://www.courts.wa.gov/opinions/pdf/937231.pdf
[5] Supreme Court Decision Draws New Distinction Between Taxes and ... https://www.masc.sc/uptown/10-2021/supreme-court-decision-draws-new-distinction-between-taxes-and-fees
[6] [PDF] Featured News https://dwuconsulting.com/images/Support/111104%20User%20Fee%20vs.%20Tax.pdf
[7] En Banc Fifth Circuit Concludes FCC's "Universal Service" Fee Is ... https://reason.com/volokh/2024/07/24/en-banc-fifth-circuit-concludes-fccs-universal-service-fee-unconstitutional/
[8] [PDF] Slip Opinion (not the court's final written decision) - Washington Courts https://www.courts.wa.gov/opinions/pdf/963606.pdf
[9] [PDF] 1,00~ on::AtJtlAJ}~1 - Steptoe https://www.steptoe.com/a/web/3910/3ZEsAb/93723-1-opinion.pdf
[10] [PDF] APPENDIX - Michigan Association of Municipal Attorneys https://mama-online.org/wp-content/uploads/2025/06/Full-Appendix-2025-GLS-Amicus-Committee-Update.pdf
[11] [PDF] 22-800 Moore v. United States (06/20/2024) - Supreme Court https://www.supremecourt.gov/opinions/23pdf/22-800_jg6o.pdf
[12] [PDF] Answer to Petition for Review - Supreme Court of California - CA.gov https://supreme.courts.ca.gov/sites/default/files/supremecourt/default/documents/2-s262634-apps-answer-pet-rev-071020.pdf
[13] Michigan Appellate Court Ruling Upholds Stormwater Utilities https://crcmich.org/dennis_platt_stormwater-utility_swu_20241030
[14] State Taxation and the Dormant Commerce Clause https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/state-taxation-and-the-dormant-commerce-clause
[15] Commonwealth Court: Stormwater Fee Not an Impermissible Tax https://www.mcneeslaw.com/stormwater-fee-tax/
