TITLE:  National Weather ServiceÂGeorgia 911 Charge, B-301126, October 22, 2003
BNUMBER:  B-301126
DATE:  October 22, 2003
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National Weather ServiceA*Georgia 911 Charge, B-301126, October 22, 2003

   Decision
    
    
Matter of:   National Weather Service*Georgia 911 Charge
    
File:            B-301126
    
Date:           October 22, 2003
    
DIGEST
    
The federal government is constitutionally immune from paying the Georgia
911 charge because it is a vendee tax, the legal burden of which falls
directly on the federal government as a user of telephone services. In
addition, Georgia statutes bar the assessment of this charge against
federal entities. The National Weather Service should not pay assessments
of this fee by its telephone service provider.
DECISION
    
The Chief of the Financial Management Division for the Mountain
Administrative Support Center of the Department of Commerce has requested
an advance decision under 31 U.S.C. S: 3529 on the propriety of paying the
emergency 911 telephone charge assessed against National Weather Service
telephone lines by its service provider on behalf of several counties in
the State of Georgia under the Georgia Emergency Telephone Number *911*
Service Act of 1977, as amended, Ga. Code Ann. S:S: 46-5-120 to 139
(Michie 1992 & Supp. 2003). Although the National Weather Service has
informed the telephone service supplier of the federal government*s
constitutional immunity from the Georgia 911 charge based on our prior 911
tax decisions, the supplier has nevertheless refused to remove these
assessments. For the reasons set forth below, we conclude that the Georgia
emergency telephone 911 charge is a vendee tax that may not be assessed
against the federal government under the U.S. Constitution unless
expressly authorized by Congress.Georgia law already bars application of
the 911 charge to federal entities such as the National Weather
Service.Ga. Code Ann. S:S: 46-5-134(a)(1), (2)(C). Accordingly, the
National Weather Service should not pay and may disregard those portions
of the service provider*s invoices that assess 911 charges.
    
    
    
    
BACKGROUND
    
Like many other states, Georgia has established an emergency *911*
telephone service system intended to *[p]rovide citizens with rapid,
direct access to public safety agencies by dialing telephone number *911*
with the objective of reducing the response time to situations requiring
law enforcement, fire, medical, rescue, and other emergency services.* 
Ga. Code Ann. S: 46-5-121(a).  Under the Georgia Emergency Telephone
Number *911* Service Act of 1977, as amended, local governments are
authorized to adopt resolutions imposing a monthly 911 *charge* on users
of local telephone services situated in areas of the state that are served
or would be served by the local government*s emergency 911 system.[1]  Ga.
Code Ann. S: 46-5-133.  The 911 charge is assessed on each *exchange
access facility,* which is defined as the access from a particular
telephone subscriber*s premises to the telephone system of a service
supplier; in other words, the 911 charge is assessed on each telephone
line.  Ga. Code Ann. S:S: 46-5-133, -134(a), -122(4).  See generally Ga.
Code Ann. S: 46-5-122.  The Georgia statute explicitly holds every
telephone subscriber in the area served by the emergency 911 system liable
for the 911 charge, which may not exceed $1.50 per line.  Ga. Code Ann.
S:S: 46-5-134(b), -134(a)(1).
         
Each service supplier must, on behalf of the local government, collect the
911 charge from those telephone subscribers to whom it provides telephone
service in the area served by the emergency 911 system and must list the
911 charge separately on each invoice.[2]  Ga Code Ann. S:
46-5-134(a)(1).  Service suppliers are entitled to three percent of the
gross 911 charges collected as an administrative fee.  Ga. Code Ann.
S: 46-5-134(d)(1).  The balance of the 911 charges must be remitted
quarterly to the local government for deposit into an *Emergency Telephone
System Fund,* a separate, restricted revenue fund which the local
government is required to maintain.  Id.  Money from this fund is
available only to pay for, inter alia, the lease, purchase, or maintenance
of emergency telephone equipment, the cost of leasing or purchasing a
building used as a public safety answering point and the actual cost of
salaries, including benefits, of employees hired by the local government
solely for the operation and maintenance of the emergency 911 system. Ga.
Code Ann. S: 46-5-134(e).
    
Significantly, the Georgia statute mandates that *all exchange access
facilities billed to the federal, state, or local governments shall be
exempt from the 911 charge.*  Ga. Code Ann. S: 46-5-134(a)(1).  See also
Ga. Code Ann. S: 46-5-134(a)(2)(C) (all wireless telecommunications
connections billed to the federal, state or local governments shall be
exempt from the wireless enhanced 911 charge).
    
ANALYSIS
    
The issue before us is whether the National Weather Service must pay the
911 charge assessed by BellSouth on behalf of Georgia county governments. 
It is an unquestioned principle of constitutional law that the United
States and its instrumentalities are immune from direct taxation by state
and local governments.  See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316
(1819).  Direct taxation occurs where the legal incidence of the tax falls
directly on the United States as the buyer of goods, Kern-Limerick, Inc.
v. Scurlock, 347 U.S. 110 (1954), or as the consumer of services, 53 Comp.
Gen. 410 (1973), or as the owner of property, United States v. Allegheny
County, 322 U.S. 174 (1944).  When the legal incidence of such a tax falls
directly on the federal government as the *vendee,* the tax is not payable
unless expressly authorized by Congress.[3]  64 Comp. Gen. 655, 656-7
(1985).
    
In determining whether a charge is a *tax* or *fee,* the nomenclature is
not determinative and the inquiry must focus on explicit factual
circumstances.  Valero Terrestrial Corp. v. Caffrey, 205 F.3d 130, 134
(4th Cir. 2000).[4]  One court described a *classic tax* as one imposed by
a legislature upon many, or all citizens, raises money, and is spent for
the benefit of the entire community.  San Juan Cellular Tel. Co. v. Public
Service Comm'n, 967 F.2d 683, 685 (1st Cir. 1992).  Other courts employ
this same three-part test in distinguishing a tax from a fee.  See, e.g.,
Valero, 205 F.3d at 134; Bidart Bros. v. California Apple Comm'n, 73 F.3d
925, 931 (9th Cir. 1996).[5]
    
In addition to the analysis of where the legal incidence of the tax falls,
we also consider additional characteristics of the 911 charges to
determine whether they are *taxes.*  First, does a local government or
quasi-governmental unit provide the emergency telephone service; second,
does the public funding of the service require legal authority, e.g., an
ordinance or a referendum, and third, is the service charge actually based
on a flat rate per telephone line, unrelated to levels of service.  64
Comp. Gen. 655 (1985); 65 Comp. Gen. 879 (1986).
    
Although the Georgia statute labels it a 911 *charge,* it is clearly a tax
imposed by local governments on a class of citizens, namely, those with
telephone service.[6]  San Juan Cellular Tel. Co., 967 F.2d 683 at 685. 
The local government operates or contracts for the operation of the
emergency 911 system.  Ga. Code Ann. S:S: 46-5-133(a), -134.  The monthly
charge is adopted by a resolution of the local government and applies to
every billed telephone subscriber, without regard to level of service. 
Ga. Code Ann. S:S: 46-5-133, -134.  The 911 charge raises money that is
spent to provide rapid, direct access to public safety agencies for the
benefit of the entire community.  San Juan Cellular Tel. Co., 967 F.2d 683
at 685.  Thus, the Georgia 911 tax is a vendee tax, the legal burden of
which falls directly on the National Weather Service as a user of
services.  The federal government is immune from paying such charges.  We
note that Georgia explicitly exempts federal, state, or local governments
from the 911 charge.  Ga. Code Ann. S: 46-5-134(a)(1).  See also Ga. Code
Ann. S: 46-5-134(a)(2)(C).
    
CONCLUSION
    
The Georgia 911 charge is a vendee tax that is not payable by the federal
government unless expressly authorized by Congress.  In addition, the
Georgia Emergency Telephone Number *911* Service Act of 1977, as amended,
explicitly exempts the federal government from the charge.  Although the
National Weather Service has informed the telephone service supplier,
BellSouth, of its constitutional immunity from the Georgia 911 charge, the
supplier has nevertheless refused to remove these assessments.  To the
extent that federal agencies are threatened with discontinuation of
telephone or other utility services for non-payment of such taxes, we
suggest you and your counsel first discuss the issue with the relevant
state taxing authority, and if that fails, consult with the Department of
Justice.
    
    
    
/signed/
    
Anthony H. Gamboa
General Counsel
    

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   [1] *Local government* means any city, county, military base or political
subdivision of Georgia and its agencies. Ga. Code Ann. S: 46-5-122(5).
[2] BellSouth is the telephone service supplier for the National Weather
Service in Georgia.
[3] On the other hand, if the legal incidence of the tax falls directly on
a business enterprise (the *vendor*), which is supplying the federal
government as a customer with goods or services, immunity does not apply. 
61 Comp. Gen. 257 (1982).  See also 63 Comp. Gen. 49 (1983).
[4] The Georgia statute labels its 911 tax a *charge,* not a *fee.*  These
terms, however, are synonymous.  See Black*s Law Dictionary 629 (7th ed.
1999) (defining *fee* as a charge for labor or services).
[5] See also Collins Holding Corp. v. Jasper County, 123 F.3d 797, 800
(4th Cir. 1997); National Cable Television Ass*n v. United States, 425
U.S. 336, 340 (1974); 49 Comp. Gen. 72 (1969).
[6] We have examined 911 charges imposed by nearly two dozen states, most
recently in Alabama.  See B-300737, June 27, 2003 and decisions cited
therein.  In all but one case, B-238410, Sept. 7, 1990 (statute imposed
Arizona 911 tax on vendor, not vendee and offices of the two United States
Senators from Arizona not constitutionally immune), we held that the 911
surcharges were vendee taxes not payable by the federal government.  See
also 61 Comp. Gen. 257, 260 (1982).