No Bright-Line Test for Fee vs. Tax: Airport Access Charges as Optional User Fees

1. Introduction

In Park 'N Go of Nebraska, LLC v. Airport Authority of the City of Omaha, 321 Neb. 798 (July 17, 2026), the Nebraska Supreme Court reversed a district court judgment that had invalidated an airport “off-airport parking user fee” as an unconstitutional tax under Neb. Const. art. VIII, § 1. The Airport Authority of the City of Omaha (a political subdivision operating Eppley Airfield under the Cities Airport Authorities Act) adopted a resolution charging off-airport parking companies a monthly amount initially calculated as 10% of gross receipts in exchange for continued access to dedicated passenger pickup and dropoff lanes (the “Commercial Vehicle Lanes”) located on airport property.

Park 'N Go, a private off-airport parking operator that shuttles customers to and from Eppley Airfield, sued for declaratory and injunctive relief, alleging the charge was a “tax” that the Airport Authority lacked constitutional authority to impose. The key issue on appeal was narrow: whether the charge was a tax (unconstitutional) or a user fee (permissible under statutory fee authority).

2. Summary of the Opinion

The Nebraska Supreme Court held the charge was a user fee, not a tax, and therefore not unconstitutional. The Court rejected the district court’s adoption of a rigid three-part test drawn from secondary authority, emphasizing that no single, universally controlling test should govern the tax-versus-fee inquiry in all cases; instead, classification depends on a case-by-case evaluation of the charge’s purpose and context.

Because Park 'N Go’s pleaded theory depended entirely on the charge being an unconstitutional tax—and because the Supreme Court concluded it was not a tax—the Court reversed the declaratory and injunctive relief (including the refund order) and remanded with directions to dismiss the complaint.

3. Analysis

3.1 Precedents Cited

  • PSK v. Legacy Outdoor Advertising, 318 Neb. 1, 13 N.W.3d 81 (2024): Cited for the proposition that declaratory judgment actions are sui generis and are treated as law or equity depending on the nature of the dispute. This framed the review posture where injunctive relief—an equitable remedy—was also sought.
  • Charter West Bank v. Riddle, 314 Neb. 263, 989 N.W.2d 428 (2023): Cited for two linked standards: (1) an injunction “sounds in equity,” and (2) in equity appeals, the appellate court reviews factual questions de novo on the record and reaches independent conclusions on both law and fact. This standard supported the Court’s willingness to independently recharacterize the charge.
  • Flinn v. Strode, 320 Neb. 813, 30 N.W.3d 661 (2026): Reinforced that statutory interpretation and questions of law require independent appellate judgment.
  • City of Ord v. Biemond, 175 Neb. 333, 122 N.W.2d 6 (1963): Invoked by the Airport Authority, but cabined by the Court. The Supreme Court explained that City of Ord did not actually decide a tax-versus-fee challenge; rather, it addressed whether a municipal airport charge met statutory requirements (including “reasonable and uniform” for the same class of service under a different statute) and whether it violated equal protection. The Court used City of Ord primarily to clarify what was—and was not—pleaded in the current case.
  • Schumacher v. Johanns, 272 Neb. 346, 722 N.W.2d 37 (2006): The key Nebraska analogue. The Court drew from Schumacher the principle that although a “tax” can be defined (including as an “enforced contribution”), the term “gains meaning only from the factual and legal context.” The Court also adopted Schumacher’s emphasis on primary purpose—there, a telecommunications surcharge was a fee because its dominant purpose was regulatory restructuring rather than raising general revenue.
  • Nebraska P.P. Dist. v. Hershey School Dist., 207 Neb. 412, 299 N.W.2d 514 (1980): Cited (through Schumacher) for the definitional formulation of “tax” used in Nebraska jurisprudence.
  • Clean Water Coalition v. The M Resort, LLC, 127 Nev. 301, 255 P.3d 247 (2011) (citing State v. Medeiros, 89 Haw. 361, 973 P.2d 736 (1999)): Mentioned as the source chain for the three-factor “fee” criteria relied upon by the district court. The Nebraska Supreme Court did not adopt that test as controlling, using it instead as an example of why multiple, competing tests exist.
  • Valero Terrestrial Corp. v. Caffrey, 205 F.3d 130 (4th Cir. 2000); Utah Sage, Inc. v. Pleasant Grove City, 525 P.3d 1269 (Utah 2023); State, ex rel., v. Withrow, 62 Ohio St. 3d 111, 579 N.E.2d 705 (1991): Cited via treatises to support the Court’s central methodological point: there is no bright-line test, and classification is fact- and purpose-dependent.
  • T-Mobile South, LLC v. Bonet, 85 So. 3d 963 (Ala. 2011) and Barber v. Ritter, 196 P.3d 238 (Colo. 2008): Quoted for the widely used distinction that taxes are primarily revenue-raising for general governmental spending, whereas fees are tied to a particular benefit or service and often allocated to the costs of that service—further reinforcing the “primary purpose” inquiry.
  • Ace Rent-A-Car v. Airport Authority, 612 N.E.2d 1104 (Ind. App. 1993); Jacksonville Port Auth. v. Alamo, 600 So. 2d 1159 (Fla. App. 1992); Westrac, Inc. v. Walker Field, 812 P.2d 714 (Colo. App. 1991); Enterprise Leasing v. Metropolitan Airports, 250 F.3d 1215 (8th Cir. 2001): These airport-industry cases anchored the Court’s substantive conclusion. They collectively support that (a) airport access charges imposed on commercial operators benefiting from airport-generated business can be user fees, (b) the fee may be measured by gross receipts as a “fair, although imperfect, method” of approximating use/benefit, and (c) the relevant “use” can extend to the broader marketplace created by the airport’s existence, not merely pavement wear on a particular lane.

3.2 Legal Reasoning

A. Reframing the Case: Pleading Limits and the “Tax vs. Fee” Question

A pivotal move in the opinion is procedural-substantive: the Court construes Park 'N Go’s complaint as presenting only a constitutional tax-versus-fee challenge, not a statutory challenge that the charge was unreasonable or non-uniform under § 3-504(11). The Court explicitly distinguishes the kind of “reasonable and uniform” claim litigated in City of Ord v. Biemond, and it refuses to affirm on Park 'N Go’s appellate alternative theory because it was not pleaded and not decided below. This underscores that classification (tax vs. fee) is analytically distinct from validity constraints on fees (e.g., reasonableness, uniformity), which must be properly raised.

B. Rejecting a Universal Test

The district court adopted a three-factor treatise-derived test focused on (1) direct beneficiary, (2) allocation to defray service costs, and (3) proportionality to benefits received. The Supreme Court held it was not error to consider such factors, but it declined to adopt them as a controlling rule. The Court’s stated principle is the decision’s most “precedent-setting” feature: fee-versus-tax determinations are case-specific; no single test is mandated.

C. Core Classification Factors Applied Here

The Court returns to functional characteristics discussed in Schumacher v. Johanns and the airport-fee cases:

  • Optionality / Avoidability: The charge is “optional and not compulsory” in the sense that it applies only if Park 'N Go elects to use and benefit from access to the Commercial Vehicle Lanes and airport facilities supporting its shuttle-based business model.
  • Specific benefit conferred: The fee is tied to a discrete privilege—continued right of access to airport-controlled lanes—and more broadly to the commercial benefit derived from serving airport passengers.
  • Reasonable relationship to use/benefit, even if not to granular costs: The Court rejects the notion that a user fee must be pegged to a quantified estimate of lane-specific costs or trip counts to avoid being a tax. It accepts that gross-receipts-based measures can approximate use and benefit (as in Ace Rent-A-Car v. Airport Authority) and that “use” can include the airport marketplace itself (as endorsed in Enterprise Leasing v. Metropolitan Airports).
  • Not a general exaction for general governmental rights: The Court concludes the charge is not so attenuated from airport use/benefit that Park 'N Go receives “nothing other than the benefits enjoyed by all citizens,” a hallmark of taxation described in the comparative authority.

D. The Court’s Treatment of “Reasonableness”

The district court’s concern—lack of usage-cost correlation, disparate charging across user categories, and gross-receipts mismatch to actual lane entries— is treated by the Supreme Court as mostly a different issue than tax classification. For the tax question, “reasonableness” is assessed at a broader level: whether the charge is reasonably related to the payor’s use of and benefit from airport facilities. The Court holds that, viewed through this lens, the gross-receipts measure is sufficiently tethered to airport-derived business to remain a fee.

3.3 Impact

A. Practical Rule for Nebraska: Flexible, Context-Driven Tax/Fee Classification

The opinion establishes that Nebraska courts should not treat any single multi-factor test as mandatory in distinguishing taxes from fees. Instead, courts should evaluate the purpose, structure, and context of the exaction—including whether it is avoidable, whether it confers a specific privilege or benefit, and whether its measure is reasonably connected to use or benefit, even if imperfect.

B. Airport and Enterprise-User Fees: Gross Receipts as a Permissible Metric

For airport authorities and similarly situated public proprietors, the decision provides strong support that charges imposed on commercial operators who derive revenue from airport-generated customers—particularly for access privileges and operational interfaces (lanes, curbs, roadways, shuttles)—can be upheld as user fees even when calculated as a percentage of gross receipts, and even where the authority does not produce a granular cost-of-service study.

C. Litigation and Pleading: Separate the “Tax” Theory from the “Unreasonable Fee” Theory

The Court’s refusal to reach Park 'N Go’s appellate argument about unreasonableness and non-uniform treatment signals a pleading and preservation lesson: challengers must distinctly plead and litigate statutory limits on fee-setting (if any) rather than relying on those concerns solely to re-label a fee as a tax.

D. Remedies: Tax Finding as the Gateway

The remedial consequences are stark. Once the charge is not a tax, Park 'N Go’s declaratory and injunctive relief collapses, and the refund remedy disappears. Future litigants should expect that remedy availability may hinge on properly identifying—and pleading—the precise legal defect.

4. Complex Concepts Simplified

  • Declaratory judgment is “sui generis”: It is a special type of case where the court declares the parties’ rights; whether it is treated like a legal or equitable action depends on the dispute’s nature.
  • Injunction “sounds in equity” and “de novo” review: Injunctions are equitable remedies. On appeal in equity cases, the Nebraska Supreme Court re-examines the record and makes its own determinations rather than deferring heavily to the trial court.
  • Tax vs. fee: A tax is generally an enforced contribution to raise revenue for public expenses. A user fee is a charge connected to a specific government-provided service or benefit, typically paid only by those who choose to use it.
  • “No bright-line test”: Courts cannot rely on one universal checklist to classify every charge. They examine the charge’s dominant purpose, how it operates, and what it is tied to.
  • “Gross receipts” metric: A fee can be measured as a percentage of revenue earned from airport-related customers as a practical proxy for the level of benefit derived from the airport, even if it does not perfectly match physical usage (like counting each lane entry).
  • “Void ab initio”: The district court had declared the resolution invalid “from the beginning.” The Supreme Court’s reversal means that declaration and its consequences (including refunds) could not stand.

5. Conclusion

Park 'N Go v. Airport Authority recalibrates Nebraska’s approach to the fee-versus-tax inquiry by rejecting rigid formulas and adopting a flexible, context-sensitive analysis centered on purpose and functional connection to a specific benefit. Applying that approach—and guided by persuasive airport-fee precedent from other jurisdictions—the Court held that the Airport Authority’s gross-receipts-based access charge is an optional user fee, not an unconstitutional tax. The decision strengthens the legal footing for Nebraska airport authorities to fund airport-related operations and obligations through targeted commercial user charges, while simultaneously emphasizing that separate statutory challenges (such as “unreasonable” or “non-uniform” fee-setting) must be distinctly pleaded and litigated.