As part of a comprehensive program to recoup the costs of
federal aviation programs from those who use the national
airsystem, Congress enacted the Airport and Airway Revenue Act of
1970, which imposes an annual "flat fee" registration tax on all
civil aircraft, including those owned by the States and by the
Federal Government, that fly in the navigable airspace of the
United States. The Act also imposes a 7 cent per gallon tax on
aircraft fuel, which, together with a 5 cent per pound aircraft
tire and 10 cent per pound tube tax and the registration tax, was
intended to reflect the cost of benefits from the programs to
noncommercial general aircraft, but States were exempted from the
fuel, tire, and tube taxes. After the registration tax was
collected under protest from it with respect to a helicopter it
used exclusively for police functions, the Commonwealth of
Massachusetts instituted this refund action, contending that the
United States may not constitutionally impose a tax that directly
affects the essential and traditional state function of operating a
police force. The District Court dismissed the complaint on the
ground,
inter alia, that the registration tax was a user
fee which did not implicate the constitutional doctrine of implied
immunity of state government from federal taxation. The Court of
Appeals affirmed.
Held: The registration tax does not violate the implied
immunity of a state government from federal taxation. Pp
435 U. S.
453-470
(a) A State enjoys no constitutional immunity from a
nondiscriminatory federal revenue measure which operates only to
ensure that each member of a class of special beneficiaries of a
federal program pays a reasonable approximation of its fair share
of the cost of the program to the Federal Government. Pp.
435 U. S.
454-463.
(b) Even if it were feasible for the Federal Government to
recover all costs of a program through charges for measurable
amounts of use of its facilities, rather than by imposing a flat
fee, so long as the federal taxes imposed do not discriminate
against state functions, are based on a fair approximation of the
State's use of the facilities, and are structured to produce
revenues that will not exceed the total cost to the Federal
Government of the benefits supplied, there can be no substantial
basis for a claim that the Federal Government may be using its
Page 435 U. S. 445
taxing powers to control, unduly interfere with, or destroy a
State's ability to perform essential services. Pp.
435 U. S.
463-467.
(c) Here, the registration tax (1) is nondiscriminatory, since
it applies not only to private users of the airways, but also to
civil aircraft operated by the United States; (2) is, together with
the 7 cent per gallon fuel tax and the 5 cent per pound tire and 1
cent per pound tube tax, a fair approximation of the cost of the
benefits civil aircraft receive from the federal programs, since,
even though the taxes do not give weight to every factor affecting
appropriate compensation for airport and airway use, the fuel tax
and tire and tube tax are geared directly to use, whereas the
registration tax is designed to give weight to factors affecting
the level of use of the navigational facilities; and (3) is not
excessive in relation to the cost of the Government benefits
supplied, since not only have the user fees proved to be
insufficient to cover the annual civil aviation outlays, but the
States, being exempt from the fuel tax, pay far less than private
noncommercial users of the airways. Pp.
435 U. S.
467-470.
548 F.2d 33, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which WHITE,
MARSHALL, and STEVENS, JJ., joined, and in Parts I, II-C, and III
of which STEWART and POWELL, JJ., joined. STEWART and POWELL, JJ.,
filed an opinion concurring in part and concurring in the judgment,
post, p.
435 U. S. 470.
REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J.,
joined,
post, p.
435 U. S. 471.
BLACKMUN, J., took no part in the decision or consideration of the
case.
Page 435 U. S. 446
MR. JUSTICE BRENNAN delivered the opinion of the Court.
*
As part of a comprehensive program to recoup the costs of
federal aviation programs from those who use the national
airsystem, Congress in 1970 imposed an annual registration tax on
all civil aircraft that fly in the navigable airspace of the United
States. 26 U.S.C. § 4491. [
Footnote
1] The constitutional question presented in this case is
whether this tax, as applied to an aircraft owned by a State and
used by it exclusively for police functions, violates the implied
immunity of a state government from federal taxation. We hold that
it does not.
I
Since the passage of the Air Commerce Act of 1926, 44 Stat. 568,
the Federal Government has expended significant amounts of federal
funds to develop and strengthen an integrated national airsystem
and to make civil air transportation safe and practical. It has
established, developed, and improved a wide array of air
navigational facilities and services that benefit all aircraft
flying in the Nation's navigable airspace, [
Footnote 2] and it has also made substantial grants to
state and local governments to assist in planning and developing
airports.
In 1970, after an extended study of the national airsystem,
Congress concluded that the level of annual federal outlays on
aviation, while significant, had not been sufficient to permit the
national airsystem to develop the capacity to cope satisfactorily
with the current and projected growth in air transportation. To
remedy this situation, Congress enacted two laws, the Airport and
Airway Development Act of 1970 (Development Act), 84 Stat. 219, and
the Airport and Airway Revenue Act of 1970 (Revenue Act), 84 Stat.
236, which together constitute a comprehensive program
substantially to expand and improve the national airport and airway
system over the decade beginning July 1, 1970. In the Development
Act, Congress provided for vastly increased federal expenditures
both for airport planning and development and for the further
expansion of federal navigational services. More importantly for
present purposes, the Revenue Act adopted several measures to
ensure that federal outlays that benefited the civil users of the
airways would, to a substantial extent, be financed by taxing
measures imposed on those civil users. [
Footnote 3]
Page 435 U. S. 448
The Revenue Act, therefore, enacted for the first time, or
increased, several taxes on civil aviation. Congress conceived of
each of these revenue measures as user fees, and calculated that
they would produce revenues that would defray a significant and
increasing percentage of the civil share of the annual total
federal airport and airway expenditures for the fiscal years 1970
to 1979. [
Footnote 4] To assure
that the revenues from these user taxes would be expended only for
the expansion, improvement, and maintenance of the air
transportation system, an Airport and Airway Trust Fund was
created, and Congress provided that the amount of revenue generated
by the aviation user charges would, during the 1970's, be paid into
this trust fund, as would any money appropriated from general
revenues for aviation purposes. [
Footnote 5] Revenue Act, § 208, 84 Stat. 250, 49 U.S.C. §
1742;
see H.R.Rep. No. 91-601, p. 41 (1969) (hereinafter
H.R.Rep.); S.Rep. No. 91-706, pp. 23-25 (1970) (hereinafter
S.Rep.).
The financing measures in the Revenue Act are intended to
promote two purposes. First, they are designed to serve the
congressional policy of having those who especially benefit from
Government activity help bear the cost.
See H.R.Rep.
Page 435 U. S. 449
38; S.Rep. 5. Second, the financing provisions are intended to
ensure that the capacity of the national air system would not again
be found to be insufficient to meet the demands of increasing use.
Congress believed that the inadequacy in past levels of investment
in aviation had been due to the substantial competition from
nonaviation budgetary requests.
See H.R.Rep. 3. The trust
fund and the user fees were, therefore, established to provide
funding for aviation that would "generally match and grow with the
demand" for use of the airways.
Id. at 8.
The tax challenged in this case is one of several adopted in the
Revenue Act, the annual aircraft registration tax. Revenue Act, §
206, 26 U.S.C. § 4491. It imposes an annual "flat fee" tax on all
civil aircraft -- including those owned by State and National
Governments [
Footnote 6] --
that fly in the navigable
Page 435 U. S. 450
airspace of the United States. [
Footnote 7] The amount of the annual charge depends upon
the type and weight of the aircraft: those with piston-driven
engines pay $25 plus 2 cents per pound of the maximum certificated
takeoff weight in excess of 2,500 pounds, whereas turbine-powered
aircraft pay $25 plus 3 1/2 cents per pound of the maximum
certificated takeoff weight.
See n 1,
supra.
As is apparent from both the rate of tax in § 441 and the
legislative history of the Revenue Act, Congress did not
contemplate that the annual registration tax would generate
significant amounts of revenue, but rather that the bulk of the
funds generated by the system would come from other user taxes,
[
Footnote 8] each of which is
related more directly to the level
Page 435 U. S. 451
of use of the navigable airspace. Thus, commercial aviation's
share of the cost of the federal activities would be raised
primarily through an 8% tax on the price of domestic air passenger
tickets,
see Revenue Act, § 203, 26 U.S.C. § 4261; a $3
"head tax" on international flights originating in the United
States,
ibid.; and a 5% tax on the cost of transporting
property by air, Revenue Act, § 204, 26 U.S.C. § 4271.
Noncommercial general aviation -- the generic category that
includes state police aircraft -- would pay most of its share
through a 7 cent per gallon tax on aircraft fuel.
See
Revenue Act,§ 202, 26 U.S.C. § 4041.
But while the registration tax was expected to produce only
modest revenues, and was understood to be only indirectly related
to system use, Congress regarded it as an integral and essential
part of the network of user charges. [
Footnote 9] Moreover, it is
Page 435 U. S. 452
the only tax imposed on those general noncommercial aircraft
owned and operated by States. Although Congress was generally of
the view that the States should be required to pay aviation user
charges, since "there would appear to be no reason why [they]
should not pay for their fair share of the use of the airway
facilities," H.R.Rep. 46;
see S.Rep. 17-18, and, in fact,
made the States subject to all the other user charges, it retained
a statutory exemption for the States from the aircraft fuel, tire,
and tube taxes.
See 68A Stat. 480, as amended, 26 U.S.C. §
4041(g) (1976 ed.); 26 U.S.C. § 4221.
The Commonwealth of Massachusetts owns several aircraft that are
subject to the tax imposed by § 4491, including a helicopter which
the Commonwealth uses exclusively for patrolling highways and other
police functions. [
Footnote
10] In 1973, the United States notified the Commonwealth that
it had been assessed for a tax of $131.43 on this state police
helicopter for the period from July 1, 1970, to June 30, 1971. The
Commonwealth refused to pay, and the United States thereafter
levied on one of the Commonwealth's bank accounts and collected
this tax, plus interest and penalties.
Pursuant to 28 U.S.C. § 1346 (1970 ed. and Supp. V), the
Commonwealth then instituted this action for a refund of the money
collected, contending that the United States may not
constitutionally impose a tax that directly affects the essential
and traditional state function of operating a police force. The
District Court dismissed the complaint in an unreported decision.
It first indicated its view that the most recent decisions of this
Court had so limited a State's constitutional immunity from federal
taxation that a constitutional challenge could not succeed unless
the tax was discriminatory or the State showed that the tax
actually impaired a State function. Because the Commonwealth had
not alleged that this nondiscriminatory
Page 435 U. S. 453
annual fee had, in fact, impaired the operations of its police
force, the District Court concluded dismissal was mandatory. In the
alternative, the District Court held that the tax in question is a
user fee and that, whatever the present scope of the constitutional
principle of implied immunity of a state government from federal
taxes, a user fee does not implicate the doctrine. The Court of
Appeals for the First Circuit affirmed, solely on the latter
ground. 548 F.2d 33 (1977). We granted certiorari, 432 U.S. 905
(19177), to resolve a conflict between this decision and
Georgia Dept. of Transp. v. United States, 430 F.
Supp. 823 (ND Ga.1976),
appeal docketed, No. 77-16.
See also City of New York v. United States, 394 F.
Supp. 641 (SDNY 1975),
affirmance order, 538 F.2d 308
(CA2 1976);
Texas v. United States, 72-2 USTC � 16.048 (WD
Tex.1972),
aff'd, 73-1 USTC 16,085 (CA5 1973) (holding
that 8% air passenger tax may constitutionally be applied to state
employees traveling on official state business). We affirm.
II
A review of the development of the constitutional doctrine of
state immunity from federal taxation is a necessary preface to
decision of this case. For while the Commonwealth concedes that
certain types of user fees may constitutionally be applied to its
essential activities, [
Footnote
11] it urges that the decisions of this Court teach that the
validity of any impost levied against a State must be judged by a
"bright-line" test: if the measure is labeled a tax and/or imposed
or collected pursuant to the Internal Revenue Code, it is
unconstitutional as applied to an essential state function even if
the revenue measure
Page 435 U. S. 454
operates as a user fee.
See Brief for Petitioner 14-28.
And the Commonwealth maintains that § 4491 is invalid for the
additional reason that the values furthered by this constitutional
doctrine necessarily require the invalidation of a levy such as
that under § 4491 which, as an annual fee, is not directly related
to use.
See Brief for Petitioner 28-41. Neither contention
has merit. The principles that have animated the development of the
doctrine of state tax immunity and the decisions of this Court in
analogous contexts persuade us that a State enjoys no
constitutional immunity from a nondiscriminatory revenue measure,
like § 4491, which operates only to ensure that each member of a
class of special beneficiaries of a federal program pay a
reasonable approximation of its fair share of the cost of the
program to the National Government. [
Footnote 12] Like the Court of Appeals, we have no
occasion to decide either the present vitality of the doctrine of
state tax immunity or the conditions under which it might be
invoked.
A
That the existence of the States implies some restriction on the
national taxing power was first decided in
Collector
v. Day, 11 Wall. 113 (1871). There, this Court held
that the immunity that federal instrumentalities and employees then
enjoyed from state taxation,
See Dobbins v.
Commissioners, 16 Pet. 435 (1842);
McCulloch
v. Maryland, 4 Wheat. 316 (1819), was to some
extent reciprocal, and that the salaries paid state judges were
immune from a nondiscriminatory federal tax. This immunity of State
and Federal Governments
Page 435 U. S. 455
from taxation by each other was expanded in decisions over the
last third of the 19th century and the first third of this century,
see, e.g., Panhandle Oil Co. v. Mississippi ex rel. Knox,
277 U. S. 218
(1928);
Indian Motorcycle Co. v. United States,
283 U. S. 570
(1931) (sales from a private person to one sovereign may not be
taxed by the other), but more recent decisions of this Court have
confined the scope of the doctrine.
The immunity of the Federal Government from state taxation is
bottomed on the Supremacy Clause, but the States' immunity from
federal taxes was judicially implied from the States' role in the
constitutional scheme.
Collector v. Day, supra, emphasized
that the States had been in existence as independent sovereigns
when the Constitution was adopted, and that the Constitution
presupposes and guarantees the continued existence of the States as
governmental bodies performing traditional sovereign functions. 11
Wall. at
78 U. S.
125-126. To implement this aspect of the constitutional
plan,
Collector v. Day concluded that it was imperative
absolutely to prohibit any federal taxation that directly affected
a traditional state function, quoting Mr. Chief Justice Marshall's
aphorisms that "
the power of taxing . . . may be exercised so
far as to destroy,'" id. at 78 U. S. 123,
quoting McCulloch v. Maryland, supra at 17 U. S. 427,
and "`a right [to tax], in its nature, acknowledges no limits.'" 11
Wall. at 78 U. S. 123,
quoting Weston v.
Charleston, 2 Pet. 449, 27 U. S. 466
(1829). The Court has more recently remarked that these maxims
refer primarily to two attributes of the taxing power. First, in
imposing a tax to support the services a government provides to the
public at large, a legislature need not consider the value of
particular benefits to a taxpayer, but may assess the tax solely on
the basis of taxpayers' ability to pay. Second (of perhaps greater
concern in the present context), a tax is a powerful regulatory
device; a legislature can discourage or eliminate a particular
activity that is within its regulatory jurisdiction simply by
imposing
Page 435 U. S. 456
a heavy tax on its exercise.
See National Cable Television
Assn. v. United States, 415 U. S. 336,
415 U. S.
340-341 (1974).
Collector v. Day, like the
earlier
McCulloch v. Maryland, reflected the view that the
awesomeness of the taxing power required a flat and absolute
prohibition against a tax implicating an essential state function
because the ability of the federal courts to determine whether
particular revenue measures would or would not destroy such an
essential function was to be doubted.
As the contours of the principle evolved in later decisions,
"cogent reasons" were recognized for narrowly limiting the immunity
of the States from federal imposts.
See Helvering v.
Gerhardt, 304 U. S. 405,
304 U. S. 416
(1938). The first is that any immunity for the protection of state
sovereignty is at the expense of the sovereign power of the
National Government to tax. Therefore, when the scope of the
States' constitutional immunity is enlarged beyond that necessary
to protect the continued ability of the States to deliver
traditional governmental services, the burden of the immunity is
thrown upon the National Government without any corresponding
promotion of the constitutionally protected values.
See,
id. at
304 U. S.
416-417;
Helvering v. Mountain Producers Corp.,
303 U. S. 376,
303 U. S.
384-385 (1938);
Willcuts v. Bunn, 282 U.
S. 216,
282 U. S. 225
(1931). The second, also recognized by Mr. Chief Justice Marshall
in
McCulloch v. Maryland, supra at
17 U. S.
435-436, is that the political process is uniquely
adapted to accommodating the competing demands "for national
revenue, on the one hand, and for reasonable scope for the
independence of state action, on the other,"
Helvering v.
Gerhardt, supra at
304 U. S. 416:
the Congress, composed as it is of members chosen by state
constituencies, constitutes an inherent check against the
possibility of abusive taxing of the States by the National
Government. [
Footnote
13]
Page 435 U. S. 457
In tacit, and at times explicit, recognition of these
considerations, decisions of the Court either have declined to
enlarge the scope of state immunity or have, in fact, restricted
its reach. Typical of this trend are decisions holding that the
National Government may tax revenue-generating activities of the
States that are of the same nature as those traditionally engaged
in by private persons.
See, e.g., New York v. United
States, 326 U. S. 572
(1946) (tax on water bottled and sold by State upheld);
Allen
v. Regents, 304 U. S. 439
(1938) (tax on admissions to state athletic events approved
notwithstanding use of proceeds for essential state functions);
Helvering v. Powers, 293 U. S. 214
(1934) (tax on operations of railroad by State);
Ohio v.
Helvering, 292 U. S. 360
(1934) (tax on state liquor operation);
South Carolina v.
United States, 199 U. S. 437
(1905) (tax on state-run liquor business). It is true that some of
the opinions speak of the state activity taxed as "proprietary,"
and thus not an immune essential
governmental activity,
but the opinions of the Members of the Court in
New York v.
United States, supra, the most recent decision, rejected the
governmental-proprietary distinction as untenable. [
Footnote 14] Rather, the majority [
Footnote 15] reasoned that a
nondiscriminatory tax
Page 435 U. S. 458
may be applied to a state business activity where, as was the
case there, the recognition of immunity would
"accomplish a withdrawal from the taxing power of the nation a
subject of taxation of a nature which has been traditionally within
that power from the beginning. Its exercise . . . by a
nondiscriminatory tax, does not curtail the business of the state
government more than it does the like business of the citizen."
326 U.S. at
326 U. S.
588-589 (Stone, C.J., concurring).
Illustrative of decisions actually restricting the scope of the
immunity is the line of cases that culminated in the overruling of
Collector v. Day in
Graves v. New York ex rel.
O'Keefe, 306 U. S. 466
(1939).
See, e.g., Helvering v. Gerhardt, supra; Helvering v.
Mountain Producers Corp., supra; Metcalf & Eddy v.
Mitchell, 269 U. S. 514
(1926).
Collector v. Day, of course, involved a
nondiscriminatory tax that was imposed not directly on the State,
but rather on the salary earned by a judicial officer. Neither
Collector v. Day itself nor its progeny or precursors made
clear how such a taxing measure could be employed to preclude the
States from performing essential functions. In any case, in the
line of decisions that culminated in
Graves v. New York ex rel.
O'Keefe, supra, the Court demonstrated that an immunity for
the salaries paid key state officials is not justifiable. Although
key state officials are agents of the State, they are also citizens
of the United States, so their income is a natural subject for
income taxation.
See Helvering v. Gerhardt, supra at
304 U. S. 420
and
304 U. S.
422.
More significantly, because the taxes imposed were
nondiscriminatory, and thus also applicable to income earned by
persons in private employment, the risk was virtually nonexistent
that such revenue provisions could significantly impede a State's
ability to hire able persons to perform its essential
Page 435 U. S. 459
functions.
See Graves v. New York ex rel. O'Keefe,
supra at
306 U. S.
481-485;
Helvering v. Gerhardt, supra at
304 U. S.
420-421. The only advantage conceivably to be lost by
denying the States such an immunity is that essential state
functions might be obtained at a lesser cost because employees
exempt from taxation might be willing to work for smaller salaries.
See 304 U.S. at
304 U. S.
420-421. But that was regarded as an inadequate ground
for sustaining the immunity and preventing the National Government
from requiring these citizens to support its activities.
See
Graves v. New York ex rel. O'Keefe, supra at
306 U. S. 483
and cases cited in n. 3. The purpose of the implied constitutional
restriction on the national taxing power is not to give an
advantage to the States by enabling them to engage employees at a
lower charge than those paid by private entities,
see Helvering
v. Gerhardt, supra at
304 U. S. 421-422, but rather is solely to protect the
States from undue interference with their traditional governmental
functions. While a tax on the salary paid key state officers may
increase the cost of government, it will no more preclude the
States from performing traditional functions than it will prevent
private entities from performing their missions.
See Graves v.
New York ex rel. O'Keefe, supra, at
306 U. S.
484-485;
Helvering v. Gerhardt, supra, at
304 U. S.
420-421
These two lines of decisions illustrate the "practical
construction" that the Court now gives the limitation the existence
of the States constitutionally imposes on the national taxing
power;
"that limitation cannot be so varied or extended as seriously to
impair either the taxing power of the government imposing the tax .
. . or the appropriate exercise of the functions of the government
affected by it."
New York v. United States, 326 U.S. at
326 U. S.
589-590 (Stone, C.J., concurring) quoting
Metcalf
& Eddy v. Mitchell, supra at
269 U. S.
523-524. Where the subject of tax is a natural and
traditional source of federal revenue, and where it is
inconceivable that such a revenue measure could ever operate to
preclude traditional
Page 435 U. S. 460
state activities, the tax is valid. While the Court has by no
means abandoned its doubts concerning its ability to make
particularized assessments of the impact of revenue measures on
essential state operations,
compare New York v. United States,
supra at
326 U. S. 581
(opinion of Frankfurter, J.) [
Footnote 16]
with 326 U.S. at
326 U. S. 590
(Stone, C.J., concurring), [
Footnote 17] it has recognized that some generic types of
revenue measures could never seriously threaten the continued
functioning of the States and hence are outside the scope of the
implied tax immunity.
B
A nondiscriminatory taxing measure that operates to defray the
cost of a federal program by recovering a fair approximation of
each beneficiary's share of the cost is surely no more offensive to
the constitutional scheme than is either a tax on the income earned
by state employees or a tax on a State's sale of bottled water.
[
Footnote 18] The National
Government's interest in being compensated for its expenditures is
only too apparent. More significantly, perhaps, such revenue
measures, by their very nature, cannot possess the attributes that
led Mr. Chief Justice Marshall to proclaim that the power to tax is
the power
Page 435 U. S. 461
to destroy. There is no danger that such measures will not be
based on benefits conferred or that they will function as
regulatory devices unduly burdening essential state activities. It
is, of course, the case that a revenue provision that forces a
State to pay its own way when performing an essential function will
increase the cost of the state activity. But
Graves v. New York
ex rel. O'Keefe and its precursors,
see 306 U.S. at
306 U. S. 483
and the cases cited in n. 3, teach that an economic burden on
traditional state functions, without more, is not a sufficient
basis for sustaining a claim of immunity. Indeed, since the
Constitution explicitly requires States to bear similar economic
burdens when engaged in essential operations,
see
U.S.Const., Amdts. 5, 14;
Pennsylvania Coal Co. v. Mahon,
260 U. S. 393
(1922) (State must pay just compensation when it "takes" private
property for a public purpose); U.S. Const., Art. I, § 10, cl. 1;
United States Trust Co. v. New Jersey, 431 U. S.
1 (1977) (even when burdensome, a State often must
comply with the obligations of its contracts), it cannot be
seriously contended that federal exactions from the States of their
fair share of the cost of specific benefits they receive from
federal programs offend the constitutional scheme.
Our decisions in analogous contexts support this conclusion. We
have repeatedly held that the Federal Government may impose
appropriate conditions on the use of federal property or
privileges, and may require that state instrumentalities comply
with conditions that are reasonably related to the federal interest
in particular national projects or programs.
See, e.g., Ivanhoe
Irrigation Dist. v. McCracken, 357 U.
S. 275,
357 U. S.
294-296 (1958);
Oklahoma v. Civil Service
Comm'n, 330 U. S. 127,
330 U. S.
142-144 (1947);
United States v. San Francisco,
310 U. S. 16
(1940);
cf. National League of Cities v. Usery,
426 U. S. 833,
426 U. S. 853
(1976);
Fry v. United States, 421 U.
S. 542 (1975). A requirement that States, like all other
users, pay a portion of the costs of the benefits they enjoy from
federal programs is surely permissible, since it is closely related
to the
Page 435 U. S. 462
federal interest in recovering costs from those who benefit, and
since it effects no greater interference with state sovereignty
than do the restrictions which this Court has approved.
A clearly analogous line of decisions is that interpreting
provisions in the Constitution that also place limitations on the
taxing power of government.
See, e.g., U.S. Const., Art I,
§ 8, cl. 3 (prohibiting any state tax that operates "to impose a
charge for the privilege of entering, trading in, or lying in a
port."
Clyde Mallory Lines v. Alabama ex rel. State Docks
Comm'n, 296 U. S. 261,
296 U. S.
265-266 (1935)). These restrictions, like the implied
state tax immunity, exist to protect constitutionally valued
activity from the undue and perhaps destructive interference that
could result from certain taxing measures. The restriction implicit
in the Commerce Clause is designed to prohibit States from
burdening the free flow of commerce,
see generally Complete
Auto Transit, Inc. v. Brady, 430 U. S. 274
(1977), whereas the prohibition against duties on the privilege of
entering ports is intended specifically to guard against local
hindrances to trade and commerce by vessels.
See Packet Co. v.
Keokuk, 95 U. S. 80,
95 U. S. 85
(1877).
Out decisions implementing these constitutional provisions have
consistently recognized that the interests protected by these
Clauses are not offended by revenue measures that operate only to
compensate a government for benefits supplied.
See, e.g., Clyde
Mallory Lines v. Alabama, supra (flat fee charged each vessel
entering port upheld because charge operated to defray cost of
harbor policing);
Evansville-Vanderburgh Airport Authority v.
Delta Airlines, Inc., 405 U. S. 707
(1972) ($1 head tax on enplaning commercial air passengers upheld
under the Commerce Clause because designed to recoup cost of
airport facilities). A governmental body has an obvious interest in
making those who specifically benefit from its services pay the
cost and, providing that the charge is structured to compensate the
government for the benefit conferred, there can be no danger of the
kind of interference
Page 435 U. S. 463
with constitutionally valued activity that the Clauses were
designed to prohibit.
C
Having established that taxes that operate as user fees may
constitutionally be applied to the States, we turn to consider the
Commonwealth's argument that § 4491 should not be treated as a user
fee because the amount of the tax is a flat annual fee, and hence
is not directly related to the degree of use of the airways.
[
Footnote 19] This argument
has been confronted and rejected in analogous contexts.
Capitol
Greyhound Lines v. Brice, 339 U. S. 542
(1950), is illustrative. There, the Court rejected an attack under
the Commerce Clause on an annual Maryland highway tax of "2% upon
the fair market value of motor vehicles used in interstate
commerce." The carrier argued that the correlation between the tax
and use was not sufficiently precise to sustain the tax as a valid
user charge. Noting that the tax "should be judged by its result,
not its formula, and must stand unless proven to be unreasonable in
amount for the privilege granted,"
id. at
339 U. S. 545,
the Court rejected the carrier's argument:
"Complete fairness would require that a state tax formula vary
with every factor affecting appropriate compensation for road use.
These factors, like those relevant in considering the
constitutionality of other state taxes, are so countless that we
must be content with 'rough approximation, rather than precision.'
. . . Each additional factor adds to administrative burdens of
Page 435 U. S. 464
enforcement, which fall alike on taxpayers and government. We
have recognized that such burdens may be sufficient to justify
states in ignoring even such a key factor as mileage, although the
result may be a tax which, on its face, appears to bear with
unequal weight upon different carriers. . . . Upon this type of
reasoning rests our general rule that taxes like that of Maryland
here are valid unless the amount is shown to be in excess of fair
compensation for the privilege of using state roads."
Id. at
339 U. S.
546-547. (Citations and footnotes omitted.)
See also
Aero Mayflower Transit Co. v. Board of Railroad Comm'rs,
332 U. S. 495
(1947) (taxes of $10 and $15 per vehicle sustained against Commerce
Clause challenges);
Clyde Mallory Lines v. Alabama ex rel.
State Docks Comm'n, supra, (flat fee designed to defray cost
of policing port upheld against claim it was constitutionally
prohibited tax on privilege of entering harbor). This Court
recently relied upon this reasoning to uphold a tax on commercial
aviation activity. In
Evansville-Vanderburgh Airport Authority
v. Delta Airlines, Inc., supra, we sustained against claims
based on the Commerce Clause and on the right to travel a $1 head
tax on commercial airline passengers. We held that such taxes are
valid so long as they (1) do not discriminate against interstate
commerce, (2) are based upon some fair approximation of use, and
(3) are not shown to be excessive in relation to the cost to the
government of the benefits conferred. 405 U.S. at
405 U. S.
716-720.
The Commonwealth, of course, recognizes that flat fees, and even
flat annual fees, have been held constitutionally permissible in
these contexts. It urges, however, that such "rough approximations
of cost," while appropriate compensatory measures in other
settings, should not be permissible here. It maintains that the
values protected by the doctrine of state tax immunity require that
any user tax be closely calibrated
Page 435 U. S. 465
to the amount of any taxpayer's actual use, and it suggests that
we -- for purposes of the state tax immunity doctrine only --
define user fees as charges for measurable amounts of use of
government facilities.
We note first that it is doubtful that the National Government
could recover the costs of its aviation activities from those
direct beneficiaries without making at least some use of annual
flat fees. In arguing that the Revenue Act provisions are not
sufficiently user-related, the Commonwealth places extensive
reliance upon the DOT Study, prepared at the direction of Congress,
[
Footnote 20] of the best
way to recoup the costs of the federal aviation activities from its
beneficiaries. While the report recognized that it would be
generally possible, albeit costly in the case of general aviation,
to tie the charges to specific measurable benefits received,
see DOT Study 61, it indicated that certain costs imposed
by general aviation could only be recovered through flat fees.
Id. at 61 n. 2.
But even if it were feasible to recover all costs through
charges for measurable amounts of use of Government facilities, we
fail to see how such a requirement would appreciably advance the
policies embodied in the doctrine of state tax immunity. Since a
State has no constitutional complaint when it is required to pay
the cost of benefits received, the Commonwealth's only legitimate
fear is that the flat fee requirement may result in the collection
from it of more than its actual "fair share." We observe first
that, where the
Page 435 U. S. 466
charges imposed by the Federal Government apply to large numbers
of private parties as well as to state activities, it is as likely
as not that the user fee will result in exacting less money from
the State than it would have to pay under a perfect user fee
system. More fundamentally, even when an annual flat fee results in
some overcharges, the Commonwealth's solution would often increase
the fiscal burden on the States. If the National Government were
required more precisely to calibrate the amount of the fee to the
extent of the actual use of the airways, administrative costs would
increase, and so would the amount of revenue needed to operate the
system. The resulting increment in a State's actual fair share
might well be greater than any overcharge resulting from the
present fee system. But the complete answer to the Commonwealth's
concern is that, even if the flat fee does cost it somewhat more
than it would have to pay under a perfect user fee system, there is
still no interference with the values protected by the implied
constitutional tax immunity of the States. The possibility of a
slight overcharge is no more offensive to the constitutional
structure than is the increase in the cost of essential operations
that results either from the fact that those who deal with the
State may be required to pay nondiscriminatory taxes on the money
they receive or from the fact a jury may award an eminent domain
claimant an amount in excess of what would be "just compensation"
in an ideal system of justice.
Whatever the present scope of the principle of state tax
immunity, a State can have no constitutional objection to a revenue
measure that satisfies the three-prong test of
Evansville-Vanderburgh Airport Authority v. Delta Airlines,
Inc. -- substituting "state function" for "interstate
commerce" in that test. So long as the charges do not discriminate
against state functions, are based on a fair approximation of use
of the system, and are structured to produce revenues that will not
exceed the total cost to the Federal Government of the benefits
Page 435 U. S. 467
to be supplied, there can be no substantial basis for a claim
that the National Government will be using its taxing powers to
control, unduly interfere with, or destroy a State's ability to
perform essential services. The requirement that total revenues not
exceed expenditures places a natural ceiling on the total amount
that such charges may generate and the further requirement that the
measure be reasonable and nondiscriminatory precludes the adoption
of a charge that will unduly burden state activities. [
Footnote 21]
III
Applying these principles to this case demonstrates that the
Commonwealth's claim of constitutional immunity is particularly
insubstantial. First, there is no question but that the tax imposed
by § 4491 is nondiscriminatory. It applies not only to private
users of the airways but also to civil aircraft operated by the
United States -- facts which minimize, if not eliminate entirely,
the basis for a conclusion that § 4491 might be an abusive exercise
of the taxing power. Indeed, the Revenue Act discriminates in favor
of the States, since it retains the States' exemption from the 7
cent per gallon fuel tax that applies to private noncommercial
general aviation -- a fact that illustrates the manner in which the
political process is peculiarly adapted to the protection of state
interests.
Second, the tax satisfies the requirement that it be a fair
approximation of the cost of the benefits civil aircraft receive
from the federal activities. As we have indicated, the legislative
background and terms of the Revenue Act indicate that �
4 and S. 468� Congress believed that
four measures, taken together, would fairly reflect some of the
cost of the benefits that redound to the noncommercial general
aircraft that fly in the navigable airspace of the United States: a
7 cent per gallon fuel tax, a 5 cent per pound tax on aircraft
tires, a 10 cent per pound tax on tubes,
see 26 U.S.C. §
4071, and the annual aircraft registration tax.
See nn.
4 and |
4 and S. 444fn8|>8,
supra. The formula
contained in these four measures, taken together, does not, of
course, give weight to every factor affecting appropriate
compensation for airport and airway use. A probable deficiency in
the formula arises because not all aircraft make equal use of the
federal navigational facilities or of the airports that have been
planned or constructed with federal assistance. But the present
scheme nevertheless is a fair approximation of the cost of the
benefits each aircraft receives. Every aircraft that flies in the
navigable airspace of the United States has available to it the
navigational assistance and other special services supplied by the
United States. [
Footnote 22]
And even those aircraft, if there are any, that have never received
specific services from the National Government benefit from them in
the sense that the services are available for their use if needed,
and in that the provision of the services makes the airways safer
for all users. [
Footnote 23]
The four taxes, taken together, fairly �
4 and S. 469� reflect the benefits received, since
three are geared directly to use, whereas the fourth, the aircraft
registration tax, is designed to give weight to factors affecting
the level of use of the navigational facilities.
See
4 and S. 444fn9|>n. 9,
supra. A more precisely calibrated formula -- which would
include landing fees, charges for specific services received, and
less reliance on annual flat fees,
see DOT Study 62 --
would, of course, be administratively more costly.
It follows that a State may not complain of the application of §
4491 on the ground it is not a fair approximation of use. Since the
fuel tax, tire and tube tax, and annual registration fee together
constitute an appropriate means of recovering the amount of the
federal investment, a State, being exempt from the fuel, tire, and
tube taxes, can have no constitutional objection to the application
of the registration fee alone.
Finally, the tax is not excessive in relation to the cost of the
Government benefits supplied. When Congress enacted the Revenue
Act, it contemplated that the user fees imposed on civil aircraft
would not be sufficient to cover the federal expenditures on civil
aviation in any one year,
see n 4,
supra, and the actual experience during the
first years of operation was that the revenues fell far short of
covering the annual civil aviation outlays. [
Footnote 24] Since the Commonwealth pays far
Page 435 U. S. 470
less than private noncommercial users of the airways, there
therefore is no basis for a conclusion that the application of the
registration tax to the States produces revenues in excess of the
costs [
Footnote 25] incurred
by the Federal Government. [
Footnote 26]
Affirmed.
MR. JUSTICE BLACKMUN took no part in the consideration or
decision of this case.
* MR. JUSTICE STEWART and MR. JUSTICE POWELL join only Parts I,
II-C, and III of this opinion. MR. JUSTICE WHITE, MR. JUSTICE
MARSHALL, and MR. JUSTICE STEVENS join the entire opinion.
[
Footnote 1]
In pertinent part, § 4491 provides:
"(a) Imposition of Tax."
"A tax is hereby imposed on the use of any taxable civil
aircraft during any year at the rate of -- "
"(1) $25, plus"
"(2)(A) in the case of an aircraft (other than a
turbine-engine-powered aircraft) 2 cents a pound for each pound of
the maximum certificated take-off weight in excess of 2,500 pounds,
or (B) in the case of any turbine engine powered aircraft, 3 1/2
cents a pound for each pound of the maximum certificated takeoff
weight."
Title 26 U.S.C. § 4492(c)(2) defines "use" as flying an aircraft
"in the navigable airspace of the United States." "[T]axable civil
aircraft" includes aircraft owned and operated by a State. §
4492(a);
see n 6,
infra.
[
Footnote 2]
These include: assisting and controlling aircraft operations
during takeoffs and landings at our Nation's larger airports; air
traffic control to Instrument Flight Rule (IFR) users and
navigation assistance to all categories of aircraft after takeoff
operations are concluded and prior to landing; and miscellaneous
services for both Visual Flight Rule (VFR) and IFR users, such as
filing flight plans, weather information, and rescue operations.
See Department of Transportation, Airport and Airway Cost
Allocation Study, Part 1, Report: Determination, Allocation, and
Recovery of System Costs 21 (1973) (hereinafter DOT Study). These
services are provided, principally by the Federal Aviation
Administration, pursuant to 49 U.S.C.§ 1348.
[
Footnote 3]
Believing that the public at large benefits from the existence
and operation of the military, Congress decided that the costs
imposed on the national airsystem by the military should be paid
for from general revenues.
See H.R.Rep. No. 91-601, pp.
3-4, 38 (1969);
cf. S.Rep. No. 9199, pp. 4-5, 7
(1970).
[
Footnote 4]
Congress projected that the total aviation expenditures would
increase from $1,029 million in fiscal 1970 to $1,727 million in
fiscal 1979 and that total revenues from the user taxes would
increase from $446.5 million in fiscal 1970 to $1,399.9 million in
fiscal 1979. The additional required appropriations or the total
deficit would thus decrease from $582.5 million in fiscal 1970 to
$327.1 million in fiscal 1979. Because the military share of the
total expenditures -- which is paid from general revenues,
see n 3,
supra -- will increase from $178 million in fiscal 1970 to
$291 million in fiscal 1979, civil aviation would pay an increasing
share of the federal expenditures allocable to it. The "civil share
deficit" would decrease from $404.5 million in fiscal 1970 to $36.1
million in fiscal 1979. H.R.Rep. No 91-601, p. 38 (1969);
see S.Rep. No. 91-699, pp. 4-5, 7 (1970).
[
Footnote 5]
The authority to use trust fund monies for the operating
expenses of the air navigational facilities, temporarily suspended
in 1971,
see Pub.L. 92-172, 85 Stat. 491, has since been
restored.
See 90 Stat. 873-874.
[
Footnote 6]
The terms of the statutory provision make clear that Congress
intended it to apply to state-owned aircraft. By the statutory
terms, the levy is to be imposed on "taxable civil aircraft," which
is defined by 26 U.S.C. § 4492(a)(1) to include any engine-driven
aircraft "registered, or required to be registered under section
501(a) of the Federal Aviation Act of 1958 [72 Stat. 771] (49
U.S.C. § 1401(a))." Since § 501(a) of the Federal Aviation Act
provides that the only aircraft that may be lawfully operated
without having been registered are aircraft of the national defense
forces of the United States, there is no question under the statute
but that state-owned aircraft are subject to the registration
tax.
The legislative history supports this view. In connection with
the discussion of one of the other taxes enacted by the Revenue
Act, the Committee Reports explained that it was terminating the
statutory exemption that previously had operated to benefit the
States
"since this tax is now generally viewed as a user charge[, so]
there would appear to be no reason why these governmental [bodies]
should not pay for their share of the use of the airway
facilities."
H.R.Rep. 46;
see S.Rep. 17-18. Obviously, this
reasoning is equally applicable to all measures the Congress
conceived of as user fees. Moreover, the Committee Reports'
discussion of § 4491 explicitly stated that the tax was "based upon
the premise that
all aircraft should pay a basic fee as an
entry fee to use the system," H.R.Rep. 40 (emphasis supplied);
see S.Rep. 20-21, and further that the tax applied to
civil aircraft owned by the United States.
See H.R.Rep.
49; S.Rep. 20. Since the statute, by its terms, includes
state-owned aircraft, and since the legislative history broadly
indicates that all government-owned civil aircraft are covered,
petitioner has conceded that the statute applies.
See
Brief for Petitioner 9, n. 1; Tr. of Oral Arg. 7.
[
Footnote 7]
The navigable airspace of the United States is administratively
delineated pursuant to 49 U.S.C. § 1301(24).
[
Footnote 8]
The following table from the legislative history illustrates the
congressional understanding that the annual registration fee would
recover only a small percentage of the costs imposed on the
airsystem by civil aviation:
bwm:
TABLE 3. -- REVENUES FROM AVIATION USER TAXES,
SELECTED FISCAL YEARS, 1965-79
[In millions of dollars]
------------------------------------------------------------------------------------
Actual Estimated
User tax 1965 1967 1969 1970 1971 1974 1979
------------------------------------------------------------------------------------
Passenger ticket tax . . . .$147.5 $194.5 $259.5 $373.7 $507.2
$679.2 $1,083.2
Cargo tax, 5 percent . . . . . . . . . . . . . . . . .18.7 42.7
63.1 134.2
Fuel tax . . . . . . . . . . .16.7 14.4 11.0 26.5 45.8 54.3 76.7
International departure
tax, $3 . . . . . . . . . . . . . . . . . . . . . . 12.4 27.1
36.5 58.7
Taxes on tires and
tubes used on aircraft . . . 2.0 2.4 2.6 2.8 3.0 3.5 6.0
Aircraft registration
taxes . . . . . . . . . . . . . . . . . . . . . . . 12.4 2.6
32.3 42.1
--------------------------------------------------------
Total . . . . . . . . . .166.2 211.3 273.1 446.5 52.4 818.9
1,399.9
------------------------------------------------------------------------------------
Source: U.S. Treasury Department and Federal Aviation
Administration, Office of Aviation Economics.
ewm:
H.R.Rep. 39 (footnotes omitted);
see S.Rep. 10. Indeed,
this table overstates the estimated revenues from the registration
tax, since it assumes that the rate of tax on piston aircraft will
be $25 plus 2 cents per pound, rather than the $25 plus 2 cents for
each pound in excess of 2,500 pounds that is provided for in §
4491.
Ibid. As the table indicates, aircraft are subject
to an aircraft tire and tube tax, which is imposed by 26 U.S.C. §
4071, but this is a highly insignificant revenue-generating
measure.
[
Footnote 9]
The reasons the registration tax was added to the Revenue Act
are clearly stated in the Committee Reports:
"The [Committee] determine[s] that, to some extent, the costs of
the airport and airway system are incurred because many aircraft
may use the system at some time, even though most of the time most
of these craft are not in the air. In addition, it appears that
heavier and faster aircraft are generally responsible for much of
the increased need of sophisticated control facilities and approach
and landing facilities."
H.R.Rep. 48;
see S.Rep. 8-9. Thus, the registration tax
was included in the bill in an attempt to recover part of the
marginal cost imposed on the national airsystem by the addition of
a possible user and to ensure that the fee system reflects in some
manner the additional costs that heavier and faster (
i.e.,
turbine-powered) aircraft impose upon it.
[
Footnote 10]
At oral argument, the Commonwealth informed us that it owns
three aircraft in addition to the helicopter that is the subject of
this case.
See Tr. of Oral Arg. 4.
[
Footnote 11]
At oral argument, it conceded that a State could not, even when
performing traditional governmental activities, insist on the right
to have the Postal Service carry unstamped letters or -- if there
were such roads -- to use federally constructed toll roads without
paying the required toll.
See id. at 8. Its argument
before this Court is that there is a difference of constitutional
magnitude between such charges and the tax imposed by § 4491.
[
Footnote 12]
The Commonwealth's arguments and the questions presented in its
brief to this Court,
see Brief for Petitioner 3, establish
that our Brother REHNQUIST's dissent errs in suggesting that the
discussion establishing this proposition is superfluous.
See
post at
435 U. S. 472.
Moreover, the dissent's assertion to the contrary notwithstanding,
the United States' brief in this Court recognizes that a decision
validating § 4491 requires rejection of the Commonwealth's
submission concerning the scope of the doctrine of state tax
immunity.
See Brief for United States 22, n.19.
[
Footnote 13]
Although the opinion for the Court in
National League of
Cities v. Usery, 426 U. S. 833
(1976), rejects the argument that the operation of the political
process eliminates any reason for reviewing federalism-based
challenges to federal regulation of the States
qua States,
we do not believe it follows that the existence of "political
checks" has no relevance to a determination of the proper
scope of a State's immunity from federal taxation. We have
regularly relied upon the existence of such political checks in
considering the scope of the National Government's immunity from
state taxation.
See, e.g., United States v. County of
Fresno, 429 U. S. 452
(1977).
[
Footnote 14]
All eight Justices who participated in the case indicated that
they regarded the governmental-proprietary distinction as an
untenable one.
See 326 U.S. at
326 U. S.
579-581 (opinion of Frankfurter, J., joined by Rutledge,
J.);
id. at
326 U. S. 586
(Stone, C.J., concurring, joined by Reed, Murphy, and Burton, JJ.);
and
id. at
326 U. S. 591
(Douglas, J., dissenting, joined by Black, J.).
[
Footnote 15]
In
New York v. United States, Mr. Justice Frankfurter
announced the judgment of the Court and an opinion joined by only
one of the eight Justices participating in the case. That opinion
upheld the tax on a broader ground than the concurring opinion of
Mr. Chief Justice Stone, joined by three Justices. We therefore
conclude that a majority supported the Chief Justice's
rationale.
[
Footnote 16]
"Any implied limitation upon the supremacy of the federal power
to levy a tax like that now before us, in the absence of
discrimination against State activities, brings fiscal and
political factors into play. The problem cannot escape issues that
do not lend themselves to judgment by criteria and methods of
reasoning that are within the professional training and special
competence of judges."
[
Footnote 17]
"Since all taxes must be laid by general, that is, workable,
rules, the effect of [state] immunity on the national taxing power
is to be determined not quantitatively, but by its operation and
tendency in withdrawing taxable property or activities from the
reach of federal taxation."
[
Footnote 18]
As is implicit from our summary of the development of the law of
state tax immunity, this doctrine does not inflexibly require the
invalidation of any revenue measure that is labeled or operates as
a tax. That § 4491 is called or can be characterized as a "tax"
thus possesses no talismanic significance. We observe, moreover,
that Congress did regard § 4491 as a user fee.
[
Footnote 19]
Only a few words are needed to reject the Commonwealth's
suggestion that the United States may not impose this tax under a
user fee rationale because the United States has no proprietary
interest in the airports and airways of the United States. Quite
simply, we think there is no basis for the position that user fees
are constitutional only when the United States has some sort of a
right of property. A user fee rationale may be invoked whenever the
United States is recovering a fair approximation of the cost of
benefits supplied.
[
Footnote 20]
Provisions in both the Development Act and the Revenue Act
directed the Department of Transportation to conduct a study of how
best to recover the costs imposed on the national airsystem by each
class of users.
See § 4 of the Development Act, 84 Stat.
220, 49 U.S.C. § 1703; § 209 of the Revenue Act, 84 Stat. 252. The
existence of these provisions underscores the fact, which is
further illustrated by the fact that the taxes imposed by the
Revenue Act expire in 1980,
see, e.g., 26 U.S.C. §
4491(e), that Congress regarded the Revenue Act user fees as an
interim approach to the recovery of aviation costs from their
beneficiaries.
[
Footnote 21]
Our Brother REHNQUIST's characterization of this test (which the
United States urged us to adopt,
see Brief for United
States 120) as "vague and convoluted"
see post at
435 U. S. 472,
overlooks its consistent applications for years by the Court,
without any apparent difficulty, in cases involving the negative
implications of the Commerce Clause. It further overlooks that, as
our experience today indicates,
see 435 U.
S. infra there is no reason to suppose that the
Court will have any different experience in applying this test in
cases involving a State's claim of immunity from federal
taxation.
[
Footnote 22]
Although a helicopter may be expected to make less intensive use
of the federal facilities and services than would an airplane, the
Commonwealth has not denied that its state police helicopter has
made some use of the federal services, and it conceded as much at
oral argument.
See Tr. of Oral Arg. 20. In any case, the
Commonwealth has indicated that its submission in the case at bar
does not depend in any way on the fact that a helicopter is
involved, but rather is equally applicable to all aircraft.
Ibid.
[
Footnote 23]
Because aircraft do not invariably use the federal services each
time they fly, the Commonwealth suggests that the case at bar is
analogous to
Cannon v. New
Orleans, 20 Wall. 577 (1874). There, this Court
held that when an ordinance taxed the use of wharves or riverbanks
indiscriminately, rather than only the use of wharves built by the
city, the exaction could not be justified as compensation for use
of municipal facilities or services. What distinguishes the case at
bar is that the federal services are directed at the entire
navigable airspace of the United States, and inure to the benefit
of all users. The analogous decision is
Clyde Mallory Lines v.
Alabama ex rel. State Docks Comm'n, 296 U.
S. 261 (1935), in which the Court held that a vessel
that has not been the recipient of any police services could be
required to pay a charge designed to defray their costs, since the
services redounded to the benefit of all vessels in the port.
[
Footnote 24]
The DOT Study, which the Commonwealth asks us judicially to
notice, concludes that the system of user fees has not come close
to recovering the costs imposed on the national airsystem by the
civil users of the airways in the first years of the program.
Id. at 43. Indeed, it finds that the greatest shortfall is
the revenue produced by the charges imposed on general aviation, a
category that, of course, includes the Commonwealth's aircraft.
See id. at 43-50.
[
Footnote 25]
Even if the revenues in any one year exceeded the outlays, it
would not follow that the tax is invalid as applied. In
Evansville-Vanderburgh Airport Authority v. Delta Airlines,
Inc., 405 U. S. 707,
405 U. S.
710-720 (1972), we indicated that the validity of the
tax was determined by comparing total revenue with total outlays:
i.e., a surplus of revenue over outlays in any one year
can be offset against actual deficits of past years, and perhaps
against projected deficits of future years.
[
Footnote 26]
We regard our Brother REHNQUIST's view that the record does not
support a conclusion that § 4491 is a user fee as perhaps another
way of stating disagreement with our understanding of the governing
legal principles.
Compare supra at
435 U. S. 463
n.19, and
435 U. S.
467-489,
with post at
435 U. S.
473-474. For under our view of those principles, there
plainly is no basis to remand for an evidentiary hearing. In light
of the undisputed nature of the tax and the Commonwealth's reliance
upon the DOT Study, there is no basis for a dispute among the
parties concerning the operation of § 4491, the nature of the
services that the United States supplies for the benefit of all
users of the airways, or the relationship between the revenues from
the various user fees and the federal expenditures on the national
airsystem. In this circumstance, the record amply justifies our
conclusion that each prong of the
Evansville-Vanderburgh
Airport Authority v. Delta Airlines, Inc., test is
satisfied.
MR. JUSTICE STEWART and MR. JUSTICE POWELL, concurring in part
and concurring in the judgment.
The petitioner has conceded that a nondiscriminatory user fee
may constitutionally be imposed upon a State, and, for
substantially the reasons stated in
435 U. S. we
agree. Moreover, we agree with the Court that
Page 435 U. S. 471
the aircraft registration tax imposed by 26 U.S.C. § 4491 is
such a user fee. We therefore see no need to discuss the general
contours of state immunity from federal taxation, as the plurality
does in Part II-A of its opinion.
On this basis we join Parts I, II-C, and III of the Court's
opinion, and concur in its judgment.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins,
dissenting.
Petitioner, the Commonwealth of Massachusetts, brought suit
against the United States to recover a charge of $131.43 plus
penalties and interest imposed upon it by reason of its use of a
helicopter in connection with its state police force. The United
States moved to dismiss petitioner's complaint, and its motion was
granted by the District Court for the District of Massachusetts.
The Court of Appeals for the First Circuit affirmed that judgment,
but expressly chose to do so on a narrower ground than that relied
upon by the District Court. 548 F.2d 33, 34 (1977). The Court of
Appeals found it unnecessary to examine the law of
intergovernmental tax immunity, because it concluded that the
charge imposed here "is, in reality, a user charge."
Id.
at 35. While the Court of Appeals recognized that the labeling of
an assessment as a user charge is not, of itself, conclusive,
cf. Packet Co. v. Keokuk, 95 U. S.
80,
95 U. S. 86
(1877), it quoted the following language in explaining its
understanding of the distinction between a tax and a user
charge:
"'It is a tax or duty that is prohibited: something imposed by
virtue of sovereignty, not claimed in right of proprietorship.
Wharfage is of the latter character. Providing a wharf to which
vessels may make fast, or at which they may conveniently load or
unload, is rendering them a service. . . . [A]nd, when compensation
is demanded for the use of the wharf, the demand is an assertion
not of sovereignty, but of a right of property.'"
548 F.2d at 36, quoting
Packet Co. v. Keokuk, supra at
95 U. S. 85.
Page 435 U. S. 472
The United States has defended its judgment in this Court solely
on the basis that the Court of Appeals was correct in concluding
that the exaction in question was a user charge. Its brief
states:
"[T]his case presents no occasion to consider the present status
of the doctrine of implied constitutional immunity of the states
from federal taxation. Here, the annual excise tax on the use of
civil aircraft is not a tax subject to any constitutional
restrictions, but is simply a required payment by the user for
airport and airway facilities funded or provided by the federal
government. Petitioner can no more claim the right to free use of
these facilities than it could, for example, use the postal service
without purchasing stamps."
Brief for United States 7. It is therefore somewhat surprising
to find
435 U. S.
Petitioner insists that it may be able to prove at a trial of the
action that the charge is not, in fact, a user fee; the United
States insists that it is a user fee, apparently as a matter of
law. This is the issue before the Court, and the only issue before
it.
I agree that the United States would have a valid defense to
this action if it had established, or could establish, that the
charge imposed was reasonably related to services rendered to the
petitioner by agencies of the Federal Government. I further
conclude that the United States would have a valid defense to this
action if it could establish that the charge was based on use by
the petitioner of some property which the United States owned, or
in which it had some other type of proprietary interest.
Cf.
Packet Co. v. Keokuk, supra, at
95 U. S. 84-85. I
am at a loss to know why the Court feels obligated to draw on cases
decided under the Commerce Clause, U.S.Const., Art. I, § 8, cl. 3,
to establish its vague and convoluted
Page 435 U. S. 473
three-part test to determine whether the user fee is valid,
since cases regarding intergovernmental relations raise
significantly different considerations. Commerce Clause cases,
while no doubt useful analogies, are not required to deal with the
fact that the payer of the user fee is a State in our
constitutional structure, and that its essential sovereign
interests are entitled to greater deference than is due to ordinary
business enterprises which may be regulated by both State and
Federal Governments. Since the United States concedes that the
absence of intergovernmental immunity to user fees is a reciprocal
one, Tr. of Oral Arg. 26-28, it stands to lose as much from the
vagueness of the Court's test as do petitioner and its sister
States.
Regardless of the phrasing of the test, I cannot accept the
Court's conclusion that the Commonwealth need not be given the
opportunity to prove that the test has not been satisfied. The
Court, relying heavily on our opinion in
Evansville-Vanderburgh
Airport Authority v. Delta Airlines, Inc., 405 U.
S. 707 (1972), holds that the fee need not be precisely
calibrated to the value of the service furnished, so long as it is
not shown to be excessive in relation to the cost to the United
States of the benefits conferred.
Ante at
435 U. S.
466-467. But in the cases considered in that opinion,
the Court explicitly noted that the challengers had been given the
chance to prove the fee excessive, and had failed to do so. 405
U.S. at
405 U. S. 720.
In addition, there was no doubt that the municipal corporations
which sought to impose the head tax in fact owned the airport
facilities, nor that passengers who were paying the head tax were
taking advantage of the services provided by those facilities.
Neither of those conclusions can be reached as a matter of law
on the record before us. The United States does not "own" the
airspace above its territorial boundaries, although it undoubtedly
has considerable authority to regulate the use of that airspace.
Nor does the United States, so far as this record shows, "own" any
of the facilities which are used by
Page 435 U. S. 474
the helicopter in question. Indeed, it is not even clear from
this record whether the helicopter in question has made use of any
of the services, such as air traffic controllers, which are
furnished by the United States to those who make use of the
airways. Were any of these facts to be found to exist by a finder
of fact, I might well concur in the Court's judgment. I cannot,
under my view of the law, accept as a substitute for such factual
findings House and Senate Reports which merely state that a tax of
this kind is "
generally viewed as a user charge.'"
Ante at 435 U. S. 449
n. 6, quoting H.R.Rep. No. 91-601, p. 46 (199).
The Court's reliance upon
Clyde Mallory Lines v. Alabama ex
rel. State Docks Comm'n, 296 U. S. 261
(1935), which arose under the Duty of Tonnage Clause of the
Constitution, Art. I, § 10, cl. 3, as well as the Commerce Clause,
is misplaced in this regard. The Court there held that neither
provision was violated by a flat fee which was charged by the State
as compensation for the "policing service rendered by the state in
the aid of the safe and efficient use of its port." 286 U.S. at
286 U. S. 264.
The Court held that the vessels were properly liable for the fee
despite the fact that they had not received any special assistance,
because the evidentiary record affirmatively demonstrated that
"[t]he benefits which flow from the enforcement of [the]
regulations . . . inure to all who enter [the harbor]."
Id. at
296 U. S.
266.
It may be that, upon further development of the record in this
case, by trial or by procedures leading to summary judgment, a
situation similar to that in
Clyde Mallory Lines, supra,
could be shown by the United States to exist. But that does not
justify the order of the District Court dismissing petitioner's
complaint without such development. I would therefore reverse the
judgment of the Court of Appeals and remand for further
proceedings.