September 20, 1994
You have the following question: Is it illegal "double taxation" for the county to charge a tipping fee? In my opinion the answer is no.
Tennessee Attorney General's Opinion 93-49 deals with the question of whether a county-wide solid waste disposal fee to defray the cost of operating solid waste convenience centers is illegal as being double taxation. The facts in that opinion indicate that Benton County proposed to charge a $3 solid waste disposal fee on all county residents, including those within the cities of Camden and Big Sandy. The two cities provided their own garbage collection services, but not convenience centers. The opinion concludes that the proposed fee is legal, reasoning that it is a fee is not a tax, and that the Solid Waste Disposal Act authorizes the imposition of a solid waste disposal fee. I think that opinion is correct.
But even if the tipping fee is "double taxation," it would probably still be legal because it appears to be authorized by statute.
The term "double taxation" has been recently used to describe various situations where city taxpayers who pay city and county taxes are either denied, or charged extra for, certain county services. The charge of double taxation has most frequently arisen recently in the areas of county garbage and fire services. However, charges of double taxation have found no support in the Tennessee courts where the it is authorized by law. In Greenfield et al. v. Butts, 582 S.W.2d 80 (1979), the plaintiffs complained that they paid county taxes which were not spent on municipal roads. Tough luck, said the Tennessee Court of Appeals, Western Section (review refused by the Tennessee Supreme Court):
A town resident has the same duty to support county government as does a non-town resident; each is a county resident... The extra taxation which a citizen of an incorporated town must pay is to support his municipal government. It has no relation to the duty he owes to contribute to the support of the County Government which affords him equal protection with every other citizen whether they reside within or without a municipality.
The same proposition is supported in a number of other cases, including Albert v. Williamson County, 798 S.W.2d 758 (1990), Williams v. Massachusetts Mutual Life Insurance Co., 221 Tenn. 08, 427 S.W.2d 845 (1968), Stalcup v. City of Gatlinburg, 557 S.W.2d 439 (Tenn. 1978) and several Tennessee Attorney Generals Opinions, including OAG 92-29. For that reason, municipalities must challenge a double taxation scheme on the ground that it is not permitted by statute. [See in addition to the OAG opinions cited, OAG 93-53, U93-16 and U92-134.]
Two recent chancery court cases are of interest in analyzing your question. It is important to note that trial court cases, including chancery court cases, are not the "law." They cannot be cited as authority to support legal theories as can appellate court cases. However, they are of interest in determining how legal questions might be handled at the local level.
In a recent chancery court case, Town of Carthage v. Smith County, No. 4928, filed February 1, 1993, three towns in Smith County contested a tonnage fee charged by Smith County. Smith County operated a number of convenience centers, all of which were open to both county and city residents. Each of the towns provided curbside garbage collection to their residents, but none provided convenience centers. The Smith County Chancery Court looked at Tennessee Code Annotated, section 59-19-101 et seq. and concluded that counties had the power to provide county-wide garbage services or garbage services to special districts, and to levy a special tax for such services. Because the county had not levied such a special tax levy on all property in the county, as authorized by Tennessee Code Annotated, section 5-19-108 or 109, said the Court, the county was authorized under Tennessee Code Annotated, section 5-19-107 to collect reasonable charges for the garbage services.
Furthermore, continued the Court, the Solid Waste Management Act of 1991, specifically authorized counties to charge a tipping fee. [Tennessee Code Annotated, section 68-211-835(a)]. As did the Tennessee Attorney General in OAG 93-49, the Court declared that the tipping fee was not a tax but a fee, and "This conclusion effectively forecloses the argument respecting double taxation."
In the other chancery court case, City of Shelbyville, et al. v. Bedford County, et al., No. 17519, filed July 14, 1993, the City of Shelbyville sued Bedford County on the grounds that the latter's sanitation and fire departments were financed in a manner constituting double taxation not authorized by statute. Both were financed though a tax levy upon all the citizens of the county, including the citizens of Shelbyville. However, Bedford County provided no sanitation or fire services within the City of Shelbyville, and the city had its own sanitation and fire services. Some garbage convenience centers were located near the corporate limits of the city and were open to use by the citizens of the city.
The Court held that Bedford County had not established sanitation or fire service districts as respectively required by Tennessee Code Annotated, section 5-19-109, and Tennessee Code Annotated, section 5-17-101 et seq., and had not levied a tax for those services only within those districts as also required by those statutes.
However, City of Carthage and City of Shelbyville can be distinguished: no tipping fee was involved in the latter. Bedford County was enjoined from imposing taxes on city residents to pay for garbage and fire services; however, I see nothing in that ruling that would prohibit Bedford County from imposing a tipping fee in accordance with Tennessee Code Annotated, section 68-211-835(a).
Sidney D. Hemsley
Senior Law Consultant