Tax versus Fee: Are they Mutually Exclusive? Not always!

Introduction

As early as in 1954, in a leading decision, which continues to be locus classicus on the subject, a seven-Judge Bench of the Supreme Court in Shirur Mutt¹ categorically delineated the distinction between “tax” and “fee”. Since then, the state of play of Indian jurisprudence has maintained, almost consistently, a clear distinction between tax and fee. The former represents a compulsory exaction without any commensurate benefit to the payer whereas the latter is a payment ordinarily in lieu of certain benefits being received by the payer. On such premise both economic fundamentals and legal validity/application of tax and fee are adjudged in law. It is as a consequence of the relative differences between them that rights and obligations arise for both the State and the subjects. To exemplify this aspect, it is now settled that because taxes are an embodiment of sovereignty, the citizen subjected to a tax cannot expect any benefit from the State against the tax being levied.² To contradistinguish, imposition of a fee can generally be interjected in the absence of quid pro quo.³ The exact delineation of two concepts, however, is difficult to postulate. This is because even though at a conceptual level tax and fee appear to be mutually exclusive, certain intersectional avenues exist wherein the distinction between tax and fee obviates and they coalesce into one; in pragmatic terms this wipes out the theoretical dividing line. This article attempts to decipher certain areas of convergence wherein the innate distinction between tax and fee is ignored and their mutual exclusivity pales into insignificance.

Delineation between tax and fee and its importance

Before diving into the areas of convergence, it is critical to establish that various points of distinction do exist between tax and fee. “The revenue which must defray, not only the expense of defending the society and of supporting the dignity of the Chief Magistrate, but all the other necessary expenses of Government, for which the constitution of the State has not provided any particular revenue may be drawn, either, first, from some fund which peculiarly belongs to the sovereign or commonwealth, and which is independent of the revenue of the people; or, secondly, from the revenue of the people.”⁴ Thus, describes Adam Smith, the necessity of taxes – to defray the expenses of the Government. Simultaneously, the description also implies that the Government does not provide any specific benefit in lieu of the tax being collected. This facet of lack of quid pro quo is the classical economics dividing line between taxes and fees.⁵

This distinction has traditionally been recognised in law as well with the Indian decisions acknowledging the conceptual divide between taxes and fees. As referred earlier, in Shirur Mutt⁶ decision the Supreme Court deciphered the intrinsic difference between the two, to inter alia observe that, while tax “is a compulsory exaction of money, by public authority, for public purposes enforceable by law and is not payment for services rendered” wherein the collection is for the “purposes of general revenue, which when collected forms part of the public revenues of the State” as against a fee which “is generally defined to be a charge for a special service rendered to individuals by some governmental agency” and it is “something voluntary which a person has got to pay if he wants certain services from the Government; but there is no obligation on his part to seek such services and if he does not want the services, he can avoid the obligation”.

The aforesaid distinction tells us that the distinction is not just relevant from the perspective of the citizen subjected to the levy (i.e., whether to expect a quid pro quo or not) but is also relevant from the perspective of the State collecting the levy as it must similarly account for the proceeds of the levy i.e. whether to deploy the proceeds for a particular activity or for general needs of the exchequer.

Besides the aforesaid conceptual distinctions between tax and fee, there are even constitutional stipulations which ensure a clear delineation between the two. To illustrate, the Constitution in the context of “Money Bill”⁷ – in which case a different legislative process is to be followed – makes separate references to tax and fee. At a much higher pedestal, the distinction between tax and fee is relevant as it forms the basis for constitutional sanction of legislative empowerment given that the Constitution envisages⁸ “distribution of legislative powers” between the Union Parliament and the State Legislatures. To this end Schedule VII – which delineates the respective legislative subjects of the Union and the States – demarcates the legislative subjects inter alia on the basis the qualification of the subject-matter between a tax versus a fee. For example, in Schedule VII, Entry 97 of List I empower the Parliament to legislate on any residuary tax⁹ whereas Entry 96 of the same list is empowerment of the Parliament to legislate upon any other class of fee vis-à-vis the subjects enlisted in the said list. This is besides the fact that various taxes are distinctively mentioned in List I, such as customs duties (Entry 83), corporation tax (Entry 85), terminal taxes on goods or passengers (Entry 89), etc. There are many other examples in Schedule VII. For example, Entry 3 of List II covers court fee whereas Entry 66 of the same list confers legislative empowerment upon the State Legislatures to legislate upon other fees relatable to the subjects enlisted in the said list besides the empowerment to levy certain classes of taxes, such as sales tax (Entry 54), professional tax (Entry 60), etc. Put pithily, the Constitution makes a distinct reference to tax and fee, which further emphasises the importance of their inter se conceptual distinction.

Compensatory tax versus Regulatory fee: A coalescing plain

The essence of the aforesaid discussion is that the moot distinction between tax and fee is the absence or presence of quid pro quo – a tax does not have a quid pro quo whereas a fee does. However, this distinction is turned on its head when one comes across the curious yet well-bred concepts of compensatory tax and regulatory fee; a compensatory tax is a tax but still carries an element of quid pro quo, whereas a regulatory fee is one without any quid pro quo and nonetheless a fee.

The concept of compensatory taxes has been judicially evolved in the context of certain taxes, such as entry tax,¹⁰ taxes on goods carried by road,¹¹ etc. to address a constitutional challenge relating to levy of such taxes. According to the Supreme Court, “Compensatory tax is by nature hybrid but it is closer to fees than to tax as both fees and compensatory taxes are based on the principle of equivalence and on the basis of reimbursement/recompense”¹² and thus, the principle of quid pro quo applies in the context of a compensatory tax. Even though in a subsequent declaration the Supreme Court has concluded that there is no legal basis nor constitutional justification of compensatory tax in relation to entry tax,¹³ it appears that the compensatory tax principle has survived in context of other taxes.¹⁴

As against this concept of compensatory tax which broods a quid pro quo even in context of a tax is the concept of regulatory fee i.e., fee which does not inhibit any quid pro quo.¹⁵ There are many illustrations of the regulatory fee concept being applied to adjudicate and uphold the validity of fee without any commensurate benefit to its payer. For illustration, levy of transit fee is considered a fee not in lieu of services but towards regulation, thereby disentitling the payer to expect any benefit.¹⁶ As another illustration, the Supreme Court justified levy of licence fee without proportionate quid pro quo being of the view that the subject fee had “a large element of a regulatory fee levied for the purpose of monitoring the activity of the licensees to ensure that they comply with the terms and conditions of the licence.”¹⁷

The aforesaid reveals that the essential distinguishing feature of quid pro quo to contradistinguish tax from fee has been rendered a fringe variable from a conclusive determinant. In fact, taking stock of the decisions addressing the distinction, the Supreme Court recently noted the state of affairs wherefrom “it emerges that the practical and even constitutional, distinction between a tax and fee has been weathered down”.¹⁸

Constitutional sanction for valid tax: Another area of convergence

Besides the dilution of conceptual standards, even in constitutional paradigm an avenue has arisen for subsuming the two distinct concepts under a single umbrella. This avenue arises notwithstanding the fact that there is neither any change in the legislative scheme nor in the entries of Schedule VII which continue to distinctively make reference to tax and fee. This aspect is in relation to the constitutional stipulations regarding a valid tax law. Article 265 of the Constitution mandates that “no tax shall be levied or collected except by the authority of law”. Thus, there is a constitutional prohibition against levy of a tax otherwise than by authority of law, which judicially interpreted refers to a valid legislation. To explore the width of this prohibition necessitates giving meaning to the expression “tax” employed in this provision.

Interestingly, the expression “tax” has been assigned a meaning in the Constitution itself and hence one need not travel far. Article 366 of the Constitution is the “definition” provision wherein clause (28) provides that “‘taxation’ includes the imposition of any tax or impost, whether general or local or special, and ‘tax’ shall be construed accordingly”.

In the aforesaid definition, the expressions “general” or “local” or “special” only qualify the nature of tax and thus do not appear to be helpful to take our quest forward. However, in this definition the expression “tax” includes any “impost”. Thus, one is required to explore the meaning of “impost”. Oxford Dictionary of English defines “impost” as “a tax or similar compulsory payment”. Thus, this generic definition of impost also does not advance the inclusion of fee therein. There is limited judicial advertence to the meaning of impost.¹⁹

It is in this background that questions have arisen whether the constitutional prohibition against levy of a tax sans authority of law is restricted to tax simpliciter or extends to subsume and debar levy of a fee without legislative sanction. In its recent decision in Mathura Vrindavan Development Authority v. Rajesh Sharma²⁰ the Supreme Court was concerned with the correctness of the decision of the High Court which has inter alia quashed levy of inspection fee, supervision fee, sub-division charges, impact fee, etc. charged by the development authorities. The High Court had found that there was no statutory empowerment to these State instrumentalities to levy such fees. Affirming the conclusion of the High Court, the Supreme Court impressed upon the constitutional scheme to highlight the illegality inter alia in the following brief terms:

“23. … Levy of such other charges can be said to be hit by Article 265 of the Constitution of India. As per Article 265 of the Constitution of India, there shall not be any levy of tax/fees/charges except in accordance with law and/or as provided under the statute. Under the circumstances and in view of the above, the High Court has rightly set aside the various demand notices by way of levy of inspection fee/supervision fee while granting of sanction layout plan, sub-division charges, impact fee, etc.”

Put differently, according to the Supreme Court even levy of a valid fee postulates satisfaction of Article 265 of the Constitution. Hence, the Supreme Court appears to conclude that the expression “tax” in Article 265 subsumes a “fee” as well. However, no reasoning has been assigned for this conclusion in Mathura Vrindavan Development Authority²¹, which renders one to look for an answer elsewhere. Fortunately, our quest to ascertain the need to include “fee” within “tax” as referred in Article 265 is answered by another decision of the Supreme Court in CIT v. McDowell and Co. Ltd.²² ,wherein the following observations were made:

“21. ‘Tax’, ‘duty’, ‘cess’ or ‘fee’ constituting a class denotes to various kinds of imposts by State in its sovereign power of taxation to raise revenue for the State. Within the expression of each specie each expression denotes different kind of impost depending on the purpose for which they are levied. This power can be exercised in any of its manifestation only under any law authorising levy and collection of tax as envisaged under Article 265 which uses only the expression that no ‘tax’ shall be levied and collected except authorised by law. It in its elementary meaning conveys that to support a tax legislative action is essential, it cannot be levied and collected in the absence of any legislative sanction by exercise of executive power of State under Article 73 by the Union or Article 162 by the State.

22. Under Article 366(28) ‘taxation’ has been defined to include the imposition of any tax or impost whether general or local or special and tax shall be construed accordingly. ‘Impost’ means compulsory levy. The well-known and well-settled characteristic of ‘tax’ in its wider sense includes all imposts. Imposts in the context have following characteristics:

(i) The power to tax is an incident of sovereignty.

(ii) ‘Law’ in the context of Article 265 means an Act of legislature and cannot comprise an executive order or rule without express statutory authority.

(iii) The term ‘tax’ under Article 265 read with Article 366(28) includes imposts of every kind viz. tax, duty, cess, or fees.

(iv) As an incident of sovereignty and in the nature of compulsory exaction, a liability founded on principle of contract cannot be a ‘tax’ in its technical sense as an impost, general, local or special.”

The aforesaid reveals that according to the Supreme Court the expression “impost” includes fee, which at least does not appear to be its etymological meaning. Further, it does not require overemphasis that there is an inherent consistency in the aforesaid conclusion of legal position. On the one hand the decision acknowledges the meaning of the expression “impost” as relatable to a compulsory levy. However, simultaneously the decision expands imposts to “duty, cess or fees”. There may not be doubts on the inclusion of “duty” and “cess” within the scope of “import” but there is certainly no genus which equates “tax” and “fee” or “duty” and “cess” with “fee” at least until the decision of the Supreme Court in Shirur Mutt²³ continues to be the law of the land. Nonetheless, the decision in McDowell and Co.²⁴ does conclude that “tax” under Article 265 includes a “fee”. Subsequently, in TISCO²⁵, the Supreme Court has followed the decision in McDowell and Co.²⁶ to conclude that even “fee” requires a legislative sanction in view of Article 265, but not without acknowledging existence of an argument that in the plain reading of and specific context of Article 265 “the expression ‘tax’ occurring in Article 265 does not take within its sweep the expression ‘fee’”.

Conclusion

The aforesaid discussion of legal position renders one baffled; is there any distinction at all, either conceptual or legal, between tax and fee? If yes, what are the legal tests to differentiate between the two, particularly in the light of the fact that the principle of quid pro quo has long lost its relevance, especially in the wake of compensatory tax and regulatory fee concepts? If no, does one nonetheless give different meaning to tax and fee when appearing in various legislations and specifically in the constitutional scheme? Vexed questions would also arise if the answer were in the negative. For illustration, if Parliament can make a law imposing any tax (even outside List I) under Entry 97 of List I, can the Parliament exercising the same power make a law imposing any fee (even outside List I) under the same Entry 97? By extension, would such an interpretation not violate the express limitation of Entry 96 which only permits fee on a matter within List I, or, put differently, make Entry 96 redundant? Besides, conflating tax with fee violates the settled principle of statutory interpretation that distinct expressions are to be given distinct meaning.²⁷ It will perhaps require a larger debate and rather calibrated elocution to address with finesse the distinction between the two concepts given their current understanding. Nonetheless, for the present, one can definitely state with certainty that notwithstanding their economic and legal distinction, taxes and fees are not always mutually exclusive.