Recovery of excessive regulatory fees

[Scarecrow Repair]

Here's something interesting about recovering excessive regulatory fees. It's from the Texas supreme court concerning a Texas matter, not gun related, but it makes me wonder if something like this could affect the $200 NFA fee some day post-Heller. I won't post the link itself, it probably wouldn't work for non-subscribers, but here is the gist of the matter. A Texas city assessed a fire safety registration fee which generated far more revenue than was needed to pay for the program and it seems to have been an obvious attempt to shift payments.

The Supreme Court reversed the Court of Appeals' holding that the fee was an unlawful tax but recovery was barred by the voluntary payment rule because the members of the certified class had not paid the tax under duress. The Supreme Court stated that although the taxpayer who sued for a refund for himself and others who paid the fee was actually cited with a criminal charge, payment was coerced not by the citation but by the city ordinance itself, which made nonpayment criminal. Further, the Supreme Court rejected the city's argument that the mere threat of criminal charges should not be held to have coerced payment of the registration fee when the taxpayer could have sued for injunctive or declaratory relief to avoid payment. While the availability of injunctive or declaratory relief might prevent the assessment of an unlawful tax from being a denial of due process, the failure to pursue such relief before paying an unlawful tax did not render the payment voluntary so as to defeat a claim for refund.

Don't know how excessive the fee was, but the $200 NFA tax certainly seems excessive. Supposing Heller wins and the ruling requires strict scrutiny -- could the NFA tax be considered excessive? I realize it's a stretch from a Texas fire safety fee to a national gun tax ...

[yellowfin]

Before doing away with the $200 tax and rebating it, I'd say use the proceeds to make NFA paperwork done on the spot and automated and not needing CLEO signoff.

[zinfull]

If I could I would be glad to pay $200 for a mg or silencer fee.
Some think $150 is ok for transfer so saying $200 is excessive is a stretch.

Jerry

[adamsreeftank]

Think bigger guys.

The "right" decision in Heller could cast the whole NFA into doubt. If you listen to the first day arguments that's practically all they talk about.

[AngelDecoys]

Don't know how excessive the fee was, but the $200 NFA tax certainly seems excessive.

Consider than in 1937 when that NFA law passsed, the average income was $37/week. People paid the $200 tax for $10 rifles. Now that's excessive.

Anything Heller related is speculative, but I imagine the decision will not effect the NFA laws. Its a fee, not a ban. That $200 fee from 1937, could be adjusted to $20,000 in today's dollars. I'd certainly like to be wrong on that. Like everyone else, I'll wait until the Heller decision comes out. Needless to say, any regulatory fee with regards to firearms probably would not be considered on par with anything else. Firearms always seem to be seen as the exception.

[bwiese]

There've been quite a few cases where 'fee capture' was not justified nor related to the amount of work required.

Decades ago I think FCC was charging too much for ham radio and CB radio license (yes, back in early 70s you had to apply for a CB license) applications and got slapped.

I suppose this is kinda of those 'rational relationship' determinations - the fee must just reasonably recover processing costs and not be a 'profit center', with fees high enough that it may have effect of curtailing license applications.

[mymonkeyman]

I think that almost all excessive fee suits are successful only when the statute says the fee must be charged to cover costs. The problem with the NFA fee is that it is not determined by BATF, but is in the statute itself. Therefore the only way to challenge it is to argue it is unconstitutional. One way might be Heller, one way might be the excessive fines or due process clauses. IMHO, none of these have any chance of success.

[aileron]

$20,000 in today's dollars. I'd certainly like to be wrong on that.

Actually it works out to be $4508.58 based on a weekly salary of $834.15.

So we can say the NFA tax adjusted to today's average weekly income would be $4500 dollars. Still excessive. This is not equivalent to what $200 dollars was worth back then.

[AngelDecoys]

Actually it works out to be $4508.58 based on a weekly salary of $834.15.

So we can say the NFA tax adjusted to today would be $4500 dollars. Still excessive.

Probably right on the number there. I was just throwing one out myself. If the purpose is to limit those who would be able to purchase such items (which was the idea with the initial NFA law), then it certainly worked.

Not paying the fee is essentially the Miller case all over again, isn't it? ($200 tax on a $10 shortened shotgun)

I maybe wrong, but my take on the 1930's NFA law was to essentially give the treasury boys something to do post prohibition. Fees in statues can easily be raised by a new NFA law if the $200 became enough of a concern. (Low enough for the average person) 'Excessive' becomes relative to Federal Judges, and others who see automatic weapons in civilian hands as a scary prospect. I don't think any such fee (however excessive), even if fought will get anywhere.

The real issue (any fee aside), would be in reforming the process in how much time, and approval (or non-approval) in processing applications on the federal end of things. Not knowing myself, I hear it takes many months, and that there's all kinds of hoops to jump through.