PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

COLLINS HOLDING CORPORATION,
Plaintiff-Appellee,

v.
                                                                         No. 96-1354
JASPER COUNTY, SOUTH CAROLINA, a
political subdivision of South
Carolina,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Beaufort.
Julian Abele Cook, Jr., Senior District Judge, sitting by designation.
(CA-94-2719-9-19)

Argued: July 8, 1997

Decided: September 3, 1997

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Vacated and remanded with instructions by published opinion. Judge
Michael wrote the opinion, in which Judge Niemeyer and Judge Motz
joined.

_________________________________________________________________

COUNSEL

ARGUED: David Scott Matthews, JASPER COUNTY ATTOR-
NEY'S OFFICE, Ridgeland, South Carolina, for Appellant. George
Marion Earle, HUNTER, MACLEAN, EXLEY & DUNN, P.C.,
Savannah, Georgia, for Appellee.

_________________________________________________________________
OPINION

MICHAEL, Circuit Judge:

The substantive issue in this case is whether South Carolina law
prohibits a Jasper County ordinance that imposes a license fee on
businesses leasing video poker machines. The district court held that
the ordinance cannot be enforced as written because it conflicts with
South Carolina law. Because the issue of whether jurisdiction is
barred by the Tax Injunction Act, 28 U.S.C. § 1341, must be
addressed, we vacate the judgment of the district court and remand for
that court to consider the applicability of the Act.

I.

Appellant Jasper County, South Carolina, enacted an ordinance in
1993 that imposes a "license fee" on various businesses associated
with the gaming industry, including video poker arcades, distributors,
and lessors. The purpose of the fee, as stated in the ordinance, is "pro-
viding regulation as may be required by the businesses subject thereto
and for the purpose of raising revenue for the general fund of the
County through a privilege tax." J.A. 256. The ordinance separates
gaming businesses into different classes and assigns a separate rate to
each class. Video poker arcades, distributors, and lessors must pay
Jasper County $200 for the first $2,000 in income derived from the
business and $40 for each $1,000 in income thereafter.

Appellee Collins Holding Corporation (Collins) leases video poker
machines to bars, convenience stores, and other businesses in South
Carolina. Collins paid a 1994 license fee of $17,000 (plus a $850 pen-
alty) to Jasper County under protest and brought this action in the
United States District Court for the District of South Carolina. Collins
challenged the constitutionality of the Jasper County ordinance under
the Equal Protection Clause of the United States Constitution, thereby
invoking federal question jurisdiction. Collins also challenged the
validity of the ordinance under South Carolina law. The district court,
exercising supplemental jurisdiction to reach the state law claim, see
28 U.S.C. § 1367, held that the county ordinance imposed a license
fee in excess of that permitted by South Carolina law. Collins was
therefore awarded a refund. Jasper County appeals.

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II.

We are bound on our own to ask whether the Tax Injunction Act
ousted the district court of jurisdiction to hear Collins' case.1 The Act
is one sentence long: "The district courts shall not enjoin, suspend or
restrain the assessment, levy or collection of any tax under State law
where a plain, speedy and efficient remedy may be had in the courts
of such State." 28 U.S.C. § 1341. This broad restriction on federal
court jurisdiction over state and local tax matters reflects the impor-
tance of the taxing power to the operation of state governments as
well as the desire of the Congress to restrain federal courts from
unduly interfering with state revenue collection. See Arkansas v.
Farm Credit Serv. of Cent. Arkansas, 117 S. Ct. 1776, 1780 (1997)
("The States' interest in the integrity of their own processes is of par-
ticular moment respecting questions of state taxation."); National Pri-
vate Truck Council, Inc. v. Oklahoma Tax Comm'n, 515 U.S. 582,
115 S. Ct. 2351, 2354 (1995) ("`It is upon taxation that the several
States chiefly rely to obtain the means to carry on their respective
governments, and it is of the utmost importance to all of them that the
modes adopted to enforce the taxes levied should be interfered with
as little as possible.'" (quoting Dows v. City of Chicago, 78 U.S. (11
Wall.) 108, 110 (1871))).

Two questions frequently arise when a federal court considers
whether the Tax Injunction Act bars a suit challenging a state or local
tax. First, do the state courts provide a "plain, speedy and efficient"
remedy? Second, is the state or local law a "tax," or is it a regulatory
fee that falls outside the restrictions of the Tax Injunction Act?2
_________________________________________________________________
1 The parties did not raise this question either in district court or before
us. Nevertheless, the Tax Injunction Act is a jurisdictional provision, and
its application cannot be waived. See Cumberland Farms, Inc. v. Tax
Assessor, 116 F.3d 943, 945 (1st Cir. 1997); Eastern Fed. Corp. v.
Wasson, 525 F. Supp. 241, 243 (D.S.C. 1981) (noting that applicability
of Tax Injunction Act must be resolved first because"[t]he court has a
duty to inquire into its lack of jurisdiction"); see also Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977) ("[W]e are
obliged to inquire sua sponte whenever a doubt arises as to the existence
of federal jurisdiction.").
2 Settled case law provides some ready answers to other questions that
might appear from a reading of just the text of the statute. First, the Tax

                     3
The "plain, speedy, and efficient" remedy question turns on
whether the available state court remedies meet certain procedural
criteria. See Rosewell v. LaSalle Nat'l Bank, 450 U.S. 503, 521
(1981). "In particular, a state-court remedy is plain, speedy and effi-
cient only if it provides the taxpayer with a full hearing and judicial
determination at which she may raise any and all constitutional objec-
tions to the tax." California v. Grace Brethren Church, 457 U.S. 393,
411 (1982) (citations and internal quotation marks omitted). Provid-
ing for a refund action may be sufficient: "the fact that a taxpayer
must either pay a tax or post a bond prior to challenging the state tax
assessment does not render the state's remedy outside the scope of the
Tax Injunction Act." International Lotto Fund v. Virginia State Lot-
tery Dep't, 20 F.3d 589, 593 (4th Cir. 1994); see also Great Lakes
Dredge & Dock Co. v. Huffman, 319 U.S. 293, 301 (1943) (noting
that Tax Injunction Act is "predicated upon the desirability of freeing,
from interference by the federal courts, state procedures which autho-
rize litigation challenging a tax only after the tax has been paid"). The
"plain, speedy and efficient" remedy inquiry thus involves an exami-
_________________________________________________________________
Injunction Act makes no mention of local (county and municipal) taxes,
only taxes "under State law." 28 U.S.C. § 1341 (emphasis added). It has
long been established, however, that the Tax Injunction Act applies to
local taxes as well as state taxes. See, e.g., Rosewell v. LaSalle Nat'l
Bank, 450 U.S. 503 (1981) (applying Tax Injunction Act to county prop-
erty tax); Hager v. City of West Peoria, 84 F.3d 865, 868 n.1 (7th Cir.
1996). Second, the Tax Injunction Act only mentions suits to "enjoin,
suspend or restrain" state tax administration, and Collins seeks a refund,
not an injunction. The Act, however, has been interpreted broadly to bar
suits for declaratory and injunctive relief, see California v. Grace
Brethren Church, 457 U.S. 393, 407-11 (1982); Great Lakes Dredge &
Dock Co. v. Huffman, 319 U.S. 293 (1943), and suits for refunds or mon-
etary relief, see National Private Truck Council, Inc. v. Oklahoma Tax
Comm'n, 515 U.S. 582 (1995); Cumberland Farms, Inc. v. Tax Assessor,
116 F.3d 943, 945 (1st Cir. 1997); Robinson Protective Alarm Co. v. City
of Philadelphia, 581 F.2d 371, 373 n.5 (3d Cir. 1978). Third, most fed-
eral actions barred by the Tax Injunction Act are brought by out-of-state
taxpayers who attempt to invoke diversity jurisdiction under 28 U.S.C.
§ 1332(a). Even so, the Act's jurisdictional bar applies with equal force
to a complaint, such as this one, invoking federal question jurisdiction
under 28 U.S.C. § 1331(a). See Robinson , 581 F.2d at 373 n.5; American
Commuters Ass'n v. Levitt, 405 F.2d 1148, 1150-51 (2d Cir. 1969).

                  4
nation of state law to determine whether a taxpayer who follows the
proper channels can receive adequate judicial review under state law.

Various circuit court decisions provide guidance for considering
the second question -- whether the law is a "tax" or a "fee." See
Cumberland Farms, Inc. v. Tax Assessor, 116 F.3d 943 (1st Cir.
1997); Hager v. City of West Peoria, 84 F.3d 865 (7th Cir. 1996);
Bidart Bros. v. California Apple Comm'n, 73 F.3d 925 (9th Cir.
1996); San Juan Cellular Tel. Co. v. Public Serv. Comm'n, 967 F.2d
683 (1st Cir. 1992). These cases make a general distinction between
broader-based taxes that sustain the essential flow of revenue to state
(or local) government and fees that are connected to some regulatory
scheme. Taxes fall within the scope of the Tax Injunction Act, but
regulatory fees do not.

Distinguishing a tax from a fee often requires careful analysis
because the line between "tax" and "fee" can be a blurry one.3 The
First Circuit has identified the clear cases:

          [Courts] have sketched a spectrum with a paradigmatic tax
          at one end and a paradigmatic fee at the other. The classic
          "tax" is imposed by a legislature upon many, or all, citizens.
          It raises money, contributed to a general fund, and spent for
          the benefit of the entire community. The classic"regulatory
          fee" is imposed by an agency upon those subject to its regu-
          lation. It may serve regulatory purposes directly by, for
          example, deliberately discouraging particular conduct by
          making it more expensive. Or, it may serve such purposes
          indirectly by, for example, raising money placed in a special
          fund to help defray the agency's regulation related expenses.

San Juan Cellular, 967 F.2d at 685 (citations omitted).

It is useful to begin with a look at who imposes, administers, and
collects the assessment. An assessment imposed directly by a legisla-
ture is more likely to be a tax than one imposed by an administrative
_________________________________________________________________
3 Whether the body imposing the assessment labels it as a tax or a fee
is not dispositive because the label is not always consistent with the true
character of the assessment. See Cumberland Farms, 116 F.3d at 946.

                    5
agency. Cumberland Farms, 116 F.3d at 946; Bidart Bros., 73 F.3d
at 931; San Juan Cellular, 967 F.2d at 686. If responsibility for
administering and collecting the assessment lies with the general tax
assessor, it is more likely to be a tax; if this responsibility lies with
a regulatory agency, it is more likely to be a fee. Cumberland Farms,
116 F.3d at 946; Bidart Bros., 73 F.3d at 931; see also Hager, 84 F.3d
at 871 ("A fee that reasonably estimates the cost imposed by the per-
son required to pay the fee is better seen as a user fee within the
municipality's regulatory power, not a tax."). But the heart of the
inquiry centers on function, requiring an analysis of the purpose and
ultimate use of the assessment. If the revenue is paid into the state's
(or county's) general fund and provides a general benefit to the pub-
lic, it sounds like a tax. If, on the other hand, the assessment covers
only a narrow class of persons and is paid into a special fund to bene-
fit regulated entities or defray the cost of regulation, it sounds like a
fee. See Cumberland Farms, 116 F.3d at 947; Hager, 84 F.3d at 870-
71 ("Rather than a question solely of where the money goes, the issue
is why the money is taken."); Bidart Bros. , 73 F.3d at 932-33; San
Juan Cellular, 967 F.2d at 686.

In this case we believe the two key questions -- whether the Jasper
County ordinance is a tax or a fee and whether there is a "plain,
speedy, and efficient" state remedy -- could be better answered on a
fuller record. The jurisdictional issue was not raised or considered in
district court, and the record was not developed with this issue in
mind. Nor have we had the benefit of any briefing on the subject. As
a result, we have decided to vacate the judgment and remand the case
for the development of a record on, and for consideration of, the
applicability of the Tax Injunction Act. See, e.g., E. J. Sebastian
Assocs. v. Resolution Trust Corp., 43 F.3d 106, 109 (4th Cir. 1994)
(remanding for further development of record and reconsideration).4
_________________________________________________________________
4 We leave the course of the proceedings on remand to the good judg-
ment of the district court. For what it is worth, however, we note that
summary judgment proceedings are often used to litigate and decide
issues arising under the Tax Injunction Act. See Cumberland Farms, 116
F.3d at 946 ("The classification of an impost for purposes of the [Tax
Injunction Act] -- `tax' versus `fee'-- presents a question of law appro-
priate for resolution on a properly developed summary judgment
record.").

                     6
If the district court decides that the Act deprives it of jurisdiction, it
should dismiss the complaint without prejudice to appropriate state
proceedings. If the court decides the opposite, it should enter judg-
ment on the merits.

The opinion and judgment of the district court are vacated and the
case is remanded for further proceedings consistent with this opinion.

VACATED AND REMANDED WITH INSTRUCTIONS

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