Stewart v. Verde River Irrigation & Power District
In Stewart v. Verde River Irrigation & Power District, 49 Ariz. 531, 534, 545, 68 P.2d 329, 330, 335 (1937), part of the water commissioner's duty in processing permit applications was to reject applications if "the proposed use conflicted with vested rights of others, or was a menace to the safety or against the interest and welfare of the public." Id. at 549, 68 P.2d at 336.
Additionally, because the fees collected assisted in funding the water commissioner's activities, some of the funds were used to pay for investigating and rejecting applications. Id. at 549-50, 68 P.2d at 336-37 (stating that the fee charged may appropriately be used for expenses incurred in quasi-judicial proceedings, engineering measurements and surveys, recording, filing, mapping and other "services beneficial to the claimant and necessary to the preservation of his rights . . . and the protection and assurance of his . . . title").
Certainly at least some of these activities, while they served to benefit the efficient operation of the system as a whole, did not directly benefit a water appropriation permit applicant, especially one whose application was denied.
Nevertheless, the court in Stewart held that the charges were fees, not taxes. Id. at 545, 68 P.2d at 335.
The Arizona Supreme Court held that charges in excess of $ 10,000 in connection with the issuance of a water appropriation permit constituted a fee, not a tax.
In distinguishing between a fee and a tax, the court noted that a fee is a voluntary charge paid in return for a public service that bestows a particular benefit on the recipient, "while a tax is a forced contribution of wealth to meet the public needs of the government." Id. at 544-45, 68 P.2d at 334-35.
While a fee can be avoided by not requesting the particular service associated with it, a tax cannot be avoided based on the same premise. Id. at 545, 68 P.2d at 335.
A tax relates to the taxpayer's ability to pay based on the taxpayer's "property or income" rather than its relation to any particular government service. Id. at 544-45, 68 P.2d at 334-35.