(dissenting, with whom O’Connor, J., joins). The assessment at issue cannot be justified as a fee for services; it is instead an unconstitutional tax. The assessment does not possess any of the common traits which distinguish a fee from a tax, as set out in Emerson College v. Boston, 391 Mass. 415, 424-425 (1984).
First, the party paying the fee must receive in exchange a particular government service which benefits that party in a manner not shared by the general public. Id. at 424. In this case, however, the activities of the Low-Level Radioactive Waste Management Board (board) are not services which provide a tangible present benefit to the plaintiff. The board’s relevant statutory task is to produce a management plan for the purpose of protecting public health, safety, and the environment in the safe and efficient disposal of low-level radioactive waste. G. L. c. 111H, § 12 (1994 ed.). The board does not license or regulate the generation, processing, or treat*214ment of low-level radioactive waste. There is no evidence that the plaintiff has or will use any disposal facilities operated, planned, or licensed by the board, or even that any such disposal facilities do or will exist.1
While the plaintiff may benefit from the activities of the board in planning for and managing the disposal of low-level radioactive waste in the future, there is no evidence to suggest any present benefit to the plaintiff from these activities. Until such time as the board’s plan for the disposal of waste is implemented, there are no beneficiaries of the board’s “services.” Without any present beneficiaries, it is impossible to determine whether the benefits of the services are sufficiently particularized to meet the first prong of the Emerson College test.2
Moreover, the board’s planning activities do not provide the type of tangible benefit which existed where our courts *215have upheld the imposition of charges as valid fees. See Bertone v. Department of Pub. Utils., 411 Mass. 536 (1992) (hook-up charge for electrical service); Southview Coop. Hous. Corp. v. Rent Control Bd. of Cambridge, 396 Mass. 395 (1985) (charges assessed by rent control board for rent adjustment services). See also Winthrop v. Winthrop Hous. Auth., 27 Mass. App. Ct. 645 (1989) (annual charge for connection to common sewer system); Commonwealth v. Caldwell, 25 Mass. App. Ct. 91 (1987) (mooring and slip fee for harbormaster services). I discern no compelling reason to expand the concept of particularized services to encompass the planning activities of the board. On the contrary, there is a sound policy reason to limit the type of service for which fees may be charged to those granting the user tangible present benefits such as existed in the cases cited above. If the board is permitted to charge a fee for its planning activities, then any agency of government with planning responsibilities could fund its operating expenses by charging fees to anyone who might in some way benefit in the future from that agency’s plans.
There are services for which the plaintiff does receive a present benefit, but the board does not provide them. The plaintiff receives a license to receive, acquire, possess, and transfer low-level radioactive waste from the United States Nuclear Regulatory Commission (NRC) and is subject to regulation and inspection by that agency. See 42 U.S.C. §§ 2092, 2093, 2111, 2113, 2232, 2233, 2236 (1988); 10 C.F.R. §§ 40.1-40.4, 40.14, 40.20, 40.31, 40.32, 40.35, 40.41, 40.51 (1995); 10 C.F.R. §§ 40.34, 40.42, 40.43 (1992). The NRC charges the plaintiff a fee for the costs of processing the license application and regulating the licensee. 10 C.F.R. §§ 170.31, 171.16 (1992). The Federal act does give the States limited power to regulate the disposal of low-level radioactive waste. 42 U.S.C. § 2021c (a) (1) (1988). See New York v. United States, 505 U.S. 144, 174 (1992). At the same time, however, the Federal act explicitly reserves to the NRC the right to continue regulating its licensees in most, if *216not all, other aspects of the plaintiff’s operations. 42 U.S.C. § 202Id (b) (3) (1988).3
In addition, when and if the board provides the plaintiff with access to a low-level radioactive waste disposal facility, the statute requires that a surcharge be levied on anyone using the facility. G. L. c. 111H, § 33 (o) (6), § 38 (c), § 41, § 42 (1994 ed.). This surcharge, which would be imposed in exchange for the use of a disposal facility, a service which would plainly benefit the plaintiff, more closely resembles a fee than the charge before the court.
The second common characteristic of a fee is that it is paid by choice. Emerson College, supra at 424-425. Generally, fees are charged for services voluntarily requested. Id. at 426. See National Cable Television Ass’n v. United States, 415 U.S. 336, 340 (1974) (“A fee . . . is incident to a voluntary act, e.g., a request that a public agency permit an applicant to practice law or medicine or construct a house or run a broadcast station”); New England Power Co. v. United States Nuclear Regulatory Comm’n, 683 F.2d 12, 14 (1st Cir. 1982), quoting National Cable Television Ass’n, supra, with approval. Here, the plaintiff did not request the board to develop a plan for managing and effecting the safe disposal of low-level radioactive waste.4
*217The element of voluntariness distinguishes this case from Southview Coop. Hous. Corp. v. Rent Control Bd. of Cambridge, 396 Mass. 395 (1985), and Bertone v. Department of Pub. Utils., 411 Mass. 536 (1992). In Southview, landlords, dissatisfied with the maximum rent, chose to file petitions with the rent control board for rent adjustments. The rent control board imposed a charge in connection with the filing of a petition, designed to compensate the board for its services. In Bertone, the developers of a condominium project requested an electrical service hook-up from the local utility company. The utility charged a fee for the costs of providing electrical service. In both cases, then, the individuals protesting the fees voluntarily requested the services for which they were charged. In the present case, by contrast, the plaintiff did not request any services from the board. See Berry v. Danvers, 34 Mass. App. Ct. 507, 512-513 & n.6 (1993).
The court says the plaintiff can choose whether to engage in manufacturing activities resulting in the production of low-level radioactive waste. Although recognizing that this “choice” cannot realistically be considered voluntary, the court states that the element of choice is not a compelling consideration which can be used to invalidate an otherwise legitimate charge. Ante at 206. I cannot accept the court’s cavalier dismissal of this crucial element.
The plaintiff does not have a choice in paying the fee; it is “compelled” to do so. The plaintiff is not able to avoid paying without forfeiting its Federal license and, thereby, forfeiting its right to use radioactive material. Avoidance of the fee by foregoing a privilege bestowed by a Federal license can hardly be described as a voluntary act. See Emerson *218College v. Boston, supra at 428. See also Berry v. Danvers, supra (sewer system connection charge did not meet voluntariness test where regulation prohibited individual sewage disposal systems).
The third characteristic of a fee is that it is not collected for general revenue but to compensate the agency for its services. Emerson College, supra at 425. To require the plaintiff to subsidize the administrative costs of an agency simply because the agency makes plans that might affect the plaintiff in the future is compensating an agency for its expenses, but certainly not for its services. Such a scheme is a far cry from the payment of a fee for the use of State-owned property, facilities, or the issuance of licenses or permits. To permit the fee for services concept to be based on such a tenuous relationship would destroy a fundamental concept on which taxation is based.
Since the charge is not a valid fee, it can only be justified as a tax. The board contends that the assessment on the plaintiff should be upheld as a valid excise on the privilege of generating low-level radioactive waste requiring disposal. I disagree. For an excise on the enjoyment of the privilege to be valid, the exercise of the privilege must be a voluntary act. An excise may be imposed only where “the element of absolute and unavoidable demand is lacking.” Emerson College v. Boston, supra at 428, quoting P. Nichols, Taxation in Massachusetts 16 (3d ed. 1938). What I said in discussing the charge as a fee applies here as well. The plaintiff would not be able to avoid paying the tax without forfeiting the privilege granted by its Federal license. Avoidance of the tax by forgoing a privilege bestowed by a Federal license can hardly be described as a voluntary act. See Emerson College v. Boston, supra at 426. Furthermore, to suggest that the plaintiff could cease doing business as an alternative to paying the tax is to frustrate the use which is authorized by its Federal license and calls into question the preemption doctrine.
Moreover, the taxing power under our Constitution comprehends only two general powers: to impose proportional *219and reasonable taxes on property, and to impose duties and excises on commodities. Opinion of the Justices, 220 Mass. 613, 618 (1915). By mandating a minimum assessment of seventy-five dollars on all licensees, the statute mixes the two general powers and impermissibly imposes an excise tax on the right of a licensee to hold and to own property. Emerson College, supra at 428.
I conclude, in light of the foregoing analysis, that the assessment is an unconstitutional tax. I therefore respectfully dissent.
-The court relies on the board’s contention that, if the plaintiff is to continue to engage in its current manufacturing activities, it must rely on a service provided by the board in the form of planning for disposal of low-level radioactive waste generated in the Commonwealth in compliance with Federal law and standards. Ante at 203. The plaintiff has managed its own low-level radioactive waste in the past by shipping it to sites in South Carolina, Nevada, Washington, and Utah. The court relies on the fact that this situation may change in the future and that, by 1996, States are authorized to refuse waste under certain conditions. Ante at 199. Such future contingencies do not justify the imposition of the current fee for services. Furthermore, there is no indication that the plaintiff will be unable to continue managing its own waste without the assistance of the board. Moreover, the plaintiff need not show that it will be able to avoid reliance on out-of-State disposal facilities in the future in order to meet its burden here.
In characterizing the planning activities of the board as services which provide a benefit to the plaintiff, the court fails to distinguish between present and future potential services. Ante at 202-203. On the one hand, a fee may be charged for a service which is presently available, even if the service is not actually used. See Maine v. Department of Navy, 973 F.2d 1007, 1014 (1st Cir. 1992) (Navy benefits from availability of spill response team, even though team has never responded to spill at shipyard). On the other hand, no case has held that a fee may be charged for a service the benefit of which is presently unavailable. In spite of the court’s assertion to the contrary, there is nothing in the record to support the contention that the board’s activities provide the plaintiff with continued access to waste facilities.
Title 42 U.S.C. § 2021d (b)(3) (1988), provides, in relevant part:
“Nothing contained in [this act] . . . may be construed to confer any new authority on any . . . State —
“(A) to regulate the packaging, generation, treatment, storage, disposal, or transportation of low-level radioactive waste in a manner incompatible with the regulations of the Nuclear Regulatory Commission or inconsistent with the regulations of the Department of Transportation;
“(B) to regulate health, safety, or environmental hazards from source material, byproduct material, or special nuclear material; [or]
“(C) to inspect the facilities of licensees of the Nuclear Regulatory Commission . . . .”
As the court notes, some Federal courts have upheld fees where the services provided were not voluntarily requested. See Maine v. Department of Navy, 973 F.2d 1007, 1012-1014 (1st Cir. 1992), and cases cited. Ante at 206. In Maine and the cases it cites (with one exception), the fee-paying party also sought or received a license or permit from the regulatory agency to engage in certain activities. Thus the voluntary act of applying for a permit or license was a precursor to the regulatory activities for *217which the agency charged a fee. But see South Carolina ex rel. Tindal v. Block, 717 F.2d 874, 887 (4th Cir. 1983), cert. denied, 465 U.S. 1080 (1984). Here, the board neither issues nor regulates the plaintiff’s license to possess low-level radioactive waste. It is important to note, which the court does not, the distinction between paying a fee to the agency which issues the license and paying a fee to another agency not responsible for the licensing or the regulating of the fee payor.