## Facts

- Massachusetts law required funeral directors to obtain a burial permit from the municipality where the decedent died before disposing of a body, upon submission of required documentation.
- Paul F. Silva, a licensed funeral director, routinely obtained burial permits to perform funeral services.
- The defendant municipalities (including Attleboro, New Bedford, and Taunton) imposed monetary charges for issuing burial permits.
- Silva challenged the charges as unlawful taxes rather than permissible regulatory fees.
- The parties submitted an agreed statement of facts showing the municipalities incurred significant administrative costs in fulfilling their statutory duty to issue burial permits.
- The Superior Court found the charges reasonably proportional to the municipalities’ permitting-related expenditures and upheld them as regulatory fees; the Appeals Court treated the charges as an unlawful tax.

## Issues

1. Whether municipal charges for issuing statutorily required burial permits are lawful regulatory fees or unlawful taxes.
2. Whether a mandatory charge can qualify as a fee when it funds a regulatory program and is reasonably proportional to the government’s costs.
3. Whether the record showed the charges were imposed to compensate for permitting expenses rather than to raise general revenue.

## Decision

- The Supreme Judicial Court granted further appellate review, reversed the Appeals Court, and affirmed the Superior Court.
- The court held the burial-permit charges were valid regulatory fees, not unlawful taxes.
- The court concluded the charges were imposed in exchange for a particular governmental service connected to regulating the disposal of human remains and were reasonably proportional to the costs of administering the permit process.

## Legal Principles

- The fee-versus-tax distinction is evaluated under a three-factor framework: (1) the charge is exchanged for a particular governmental service conferring a benefit not shared by society generally; (2) the charge is paid by choice in the sense that the payer can avoid it by not using the service; and (3) the charge compensates for the governmental entity’s expenses rather than raising general revenue.
- The three factors are weighed together; failure of complete voluntariness does not automatically convert a regulatory charge into a tax, particularly in public-health regulatory schemes.
- A permitting charge is a lawful regulatory fee when the evidentiary record shows it is reasonably proportional to actual administrative costs and functions to fund the permitting program rather than to generate revenue.

## Conclusion

The court upheld municipal burial-permit charges as regulatory fees because the municipalities demonstrated that the charges supported a specific regulatory service and were calibrated to the costs of administering the mandatory permit process, making them compensatory rather than revenue-raising taxes.


Silva v. City of Attleboro, 454 Mass. 165, 908 N.E.2d 722 (Mass. 2009)