Appeals court: Burial permits are illegal taxes

(Erik Jacobs for The Boston Globe)

Martin and Peter Silva in a 2006 photo at their funeral home in Fall River.

By Martin Finucane, Globe Staff

Death may be a certainty. But burial permit fees are not, the Massachusetts Appeals Court ruled today.

A Fall River funeral director has won another round in his battle to get cities and towns to eliminate the fees, which he says are actually taxes in disguise.

The Massachusetts Appeals Court ruled that the fees charged in Attleboro, New Bedford, and Taunton were improper taxes.

Paul F. Silva, a funeral director at Silva-Faria Funeral Homes, won a suit against Fall River in 2003.

But Martin A. Silva, Paul Silva's brother, said a previous ruling by the appeals court "allowed a little wiggle room and forced our having to take on some other cities and towns to get this thing declared an illegal tax once and for all."

Martin Silva, a funeral director at Silva-Faria who is also the attorney who represented his brother in the case, said he would now ask the attorney general to issue an edict abolishing the fees.

"There shouldn't be a fee any more going forward," he said. "This has been illegally exacted. It's just wrong."

The legal definition of a fee in Massachusetts includes three parts: First, it must be assessed for a service that benefits only the person paying the fee; second, the person paying must have the option to decline the service and avoid the charge; and third, the fee paid must compensate the city or town for the cost of providing the service.

A lower court judge ruled in favor of the defendants, saying that the burial permit fees were reasonable and covered expenses incurred in issuing the permits.

But the appeals court judge said that all three factors had to be considered.

"There is no question that the issuance of burial permits has a shared public benefit and that the services provided are involuntary in a way that is distinct from the typical regulatory fee. We think that the combined weight of these two factors overcomes the third factor in this case and the burial permit charges are not regulatory fees, but rather improper taxes," the court said in its ruling.

Robert Mangiaratti, the attorney for the city of Attleboro who argued the case, didn't immediately return a message seeking comment.

The attorney general's office didn't immediately have a comment.

• Comment
• Permalink
• Email