Circumstances in Which a Fee is an Excise Tax Entitled to Priority

(Excerpt) Title 11 of the United States Code (the “Bankruptcy Code”) enumerates several categories in which claims are entitled to receive priority. Indeed, Section 507(a)(8)(E) grants governmental units priority on obligations that are “excise tax[es] on a transaction.” The Bankruptcy Code, however, does not define the universe of circumstances necessary to fall within the excise tax priority category. Governmental units therefore spend considerable efforts litigating to ensure that their claims are granted priority under the Bankruptcy Code. Ultimately, the success of a claim will hinge on how narrowly or broadly a court interprets Section 507(a)(8)(E). Part I of this memorandum explores the different approaches courts use to determine what constitutes an excise tax. Part II discusses the approaches adopted in different jurisdictions to analyze an excise tax for bankruptcy purposes. Last, Part III addresses what constitutes a transaction as required for priority under the Bankruptcy Code