dissenting.
In this difficult and close case, I respectfully dissent. At issue is whether the New Jersey Department of Labor’s (“NJDOL”) claim seeks recovery of an excise tax that would entitle it to bankruptcy priority under 11 U.S.C. § 507(a)(8)(E).
New Jersey’s unemployment compensation fund is a general social welfare program paid for by contributions from both for-profit and non-profit employers. Like the for-profit employer, the non-profit employer’s required contribution funds the New Jersey statute’s objective — -to ameliorate “economic insecurity due to unemployment.” N.J.S.A. § 43:21-2. For this reason, the non-profit employer’s contribution more closely resembles a tax than other kinds of government assessments, such as debt obligations, fees in exchange for benefits, or penalties. In my view, the distinction between the contributory payment and the reimbursement obligation is one of degree rather than kind. Because both forms of unemployment contribution constitute a tax for bankruptcy purposes, I would affirm the judgment of the District Court.
I.
In United States v. Reorganized CF & I Fabricators of Utah, Inc., the Supreme Court conducted a “functional examination” to determine whether the levy in question was entitled to bankruptcy priority because it more closely resembled a tax than another form of government assessment. 518 U.S. 213, 224-25, 116 S.Ct. 2106, 135 L.Ed.2d 506 (1996). In my view, the question is whether the non-profit employer’s reimbursement obligation here functions more like a tax than another kind of assessment, such as a debt, a fee in exchange for a benefit, or a penalty.
A. Debt obligation
The Supreme Court has distinguished tax obligations from ordinary debt because unlike debt, taxes are involuntary. N.J. v. Anderson, 203 U.S. 483, 492, 27 S.Ct. 137, 51 L.Ed. 284 (1906); See also In re Boston Reg’l Med. Ctr., Inc., 291 F.3d 111, 120 (1st Cir.2002) (citing Anderson, 203 U.S. at 492, 27 S.Ct. 137). The non-profit employer’s reimbursement obligation here lacks the distinguishing characteristics of debt. It is not a voluntary obligation, nor is it based on express or implied contract.25 *262Rather it is mandated by statute.26 The 1970 FUTA amendment required formerly excluded non-profit employers to pay the contributory tax or to make reimbursement payments in its place. Although not identical in form, the 1970 FUTA amendment imposed on non-profit employers a burden similar to that imposed on for-profit employers — an obligation to fund New Jersey’s unemployment payments furthering the goals of the unemployment compensation regime.
B. Fee in Exchange for a Benefit
The non-profit employer’s reimbursement obligation functions more like a tax than a fee in exchange for a benefit. The Supreme Court has distinguished tax obligations from government fees in exchange for benefits or for services rendered. See Nat’l Cable Television Ass’n, Inc. v. United States, 415 U.S. 336, 340-42, 94 S.Ct. 1146, 39 L.Ed.2d 370 (1974); see also County Sanitation District No. 2 of Los Angeles County v. Lorber Indus. of Cal. (In re Lorber), 675 F.2d 1062 (9th Cir.1982) (holding that sewer and water user fees imposed for voluntary use of system are not taxes); In re Adams, 40 B.R. 545, 548 (E.D.Pa.1984) (“The ‘inherent character’ of the charges are premised upon an implied agreement to pay for the water and sewer services furnished.”).
National Cable held that costs imposed by the Federal Communications Commission (“FCC”) on certain broadcasters to cover the expenses of FCC oversight did not constitute a tax. The Court’s distinction between tax and fee rested on whether the obligation imposed on the regulated entity supported the FCC’s function “to safeguard the public interest in the broadcasting activities of members of the industry” or supported a “benefit” of “value to the recipient.” National Cable, 415 U.S. at 341-42, 94 S.Ct. 1146. The Court found the predominant feature of the imposed cost was to benefit the broadcasters, not the public — hence it was a fee, not a tax.27 *263There were three major factors that informed the holding in National Cable: (1) whether payment of the assessment is voluntary, that is, whether it could be avoided by not taking advantage of the government service, id. at 340, 94 S.Ct. 1146; (2) whether the government assessment is in exchange for a specific government service that benefits the entity paying in a manner “not shared by other members of society,” id. at 341, 94 S.Ct. 1146; and (3) whether the government assessment is collected to compensate the government for the expense of providing the service to the entity, but not to raise revenues to cover the cost of providing the service for others. Id. at 341-42, 94 S.Ct. 1146.
In my view, only the last consideration favors reversal here. As the majority notes, the reimbursement obligation does not support the costs of other employers’ former workers or of administering the unemployment compensation fund. Instead, a non-profit employer only reimburses the state for the costs imposed by its own former employees. Nevertheless the statutory purpose of the obligation is to benefit the former employees and the public good, not the employer.
Moreover, application of the first and second factors supports the view that this reimbursement obligation is a tax.28 Considering the first factor, there is no voluntary act here. National Cable stated that a fee (as opposed to a tax) “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.” Id. at 340, 94 S.Ct. 1146. If the non-profit employer does not elect to reimburse, then it must contribute in the same manner as a for-profit employer. That is, the non-profit employer either pays the contributory tax or elects to make payments in lieu of the tax, but it cannot evade its responsibility to the unemployment compensation fund altogether. The non-profit employer is not a voluntary “applicant” for “benefits,” but rather, a required participant in the unemployment compensation program.
Considering the second factor, the nonprofit employer does not enjoy a “benefit” that is “not shared by other members of society.” In this case, the most direct “recipient of the benefit” is the former employee that receives payments from the unemployment compensation fund. These payments also benefit the public interest, helping to reduce the strain on society that unemployment would otherwise cause. But the payments do not grant an affirmative benefit on the non-profit employer. In National Cable, by contrast, the broadcasters’ fees benefitted themselves, at least in part, by paying for the administrative cost of FCC oversight.
It would be inaccurate to characterize the “benefit” of the reimbursement obligation as the ability to operate in New Jersey without having to pay the contributory tax. Such a characterization differs from the fee-for-benefit scheme in National Cable, where cable broadcasters paid a *264fee in exchange for the benefits of FCC oversight. In National Cable the Supreme Court cited as an example of a fee-for-benefit, “a request that a public agency permit an applicant to practice law or medicine or construct a house or run a broadcast station.” Id. at 340, 94 S.Ct. 1146. But here, it is difficult to conceptualize the reimbursement obligation as a license, permit, or operating fee.29 In short, the paradigm fee in exchange for a benefit, under National Cable, is an applicant that pays in exchange for administrative oversight or for a license to engage in a certain business activity. An unemployment reimbursement obligation — which supports a general social welfare program — does not comfortably fit into that model.
The majority views this differently, holding that the non-profit employer enjoys the “benefit” that it “may operate in the state without making quarterly contributions to the state unemployment compensation fund.” Nonetheless, before 1970, nonprofit employers had no obligation to the unemployment compensation fund at all. I find more persuasive the view that, instead of bestowing a benefit, the 1970 FUTA amendment imposed on non-profit employers a new burden to support the unemployment compensation fund, with the option to pay the quarterly tax or reimburse the state for costs.
C. Penalty
The reimbursement obligation functions more like a tax than a penalty. The Supreme Court distinguished taxes from penalties on the basis that a tax supports government policies while a penalty punishes unlawful activity. Reorganized CF & I Fabricators, 518 U.S. at 224, 116 S.Ct. 2106. The non-profit employer’s reimbursement obligation is clearly not a penalty on unlawful activity. It is a burden imposed on non-profit entities lawfully engaged in employment.30
II.
The final issue is whether the non-profit employer’s reimbursement obligation constitutes an excise tax on a pre-petition transaction under 11 U.S.C. *265§ 507(a)(8)(E).31 The statute requires that reimbursement obligations constitute an “excise tax” on “a transaction,” “occurring before the date of the filing of the petition.” The Bankruptcy Code provides no definition of “excise” or “excise tax.” Reorganized CF & I Fabricators, 518 U.S. at 220, 116 S.Ct. 2106. In determining whether a tax is an “excise tax,” courts have used a range of definitions, some broader than others. In the context of bankruptcy priority, the non-profit employer’s reimbursement obligation constitutes an excise tax on a transaction — a tax on the act of employing workers. See In re Suburban Motor Freight, Inc., 998 F.2d 338, 340 n. 3 (6th Cir.1993) (noting that an excise tax may be based upon a transaction or act of employing); see also In re DeRoche, 287 F.3d 751, 757 (9th Cir.2002) (“act of employing a worker without carrying required insurance” constitutes a “transaction” under 11 U.S.C. § 507(a)(8)(E)); 9E Am.Jur.2d Bankruptcy § 3099 (“For priority purposes, an ‘excise tax’ covers practically any tax which is not an ad valorem tax and which is imposed on the performance of an act, the engaging in an occupation, or the enjoyment of a privilege.”). All of the employment that contributed to United Healthcare’s reimbursement obligation occurred pre-petition. Therefore, the reimbursement obligation is an excise tax on a pre-petition transaction.
For these reasons, I would have affirmed the judgment of the District Court.
. The majority holds the reimbursement obligation more closely resembles a debt, likening the non-profit’s obligation to a "promise in exchange for the privilege of employing individuals in the state without being required to pay state unemployment compensation *262contributions.” While this is plausible, I believe these are the very characteristics of debt that the reimbursement obligation lacks — it is not made voluntarily nor is it pursuant to a contractual agreement.
. Before 1970, non-profit organizations did not pay the unemployment compensation tax or contribute to state unemployment compensation funds. 26 U.S.C. § 3306(c)(8) excluded from "covered” employment "service performed in the employ of a religious, charitable, educational, or other [tax exempt] organization.” See Pub.L. 86-778, § 533, 74 Stat. 984; Cal. v. Grace Brethren Church, 457 U.S. 393, 398 n. 6, 102 S.Ct. 2498, 73 L.Ed.2d 93 (1982). Congress amended FUTA in 1970, requiring state unemployment plans to cover employees of non-profit organizations and obligating non-profit employers to contribute to the state unemployment compensation fund. See 26 U.S.C. § 3309(a)(1). The 1970 amendment extended state participation to non-profit organizations because it recognized that "unemployment affects a substantial number of their employees[.]” S.Rep. No. 91-752, at 48-49, reprinted in 1970 U.S.C.C.A.N. 3606, 3617-18 (1970). But at the same time, the federal scheme sought to minimize the cost to the non-profit employer, limiting its obligation to the actual amount that former employees cost the unemployment compensation fund. See id. ("These [non-profit] organizations, which are often dependent upon charitable contributions, should not be required to share in the costs of providing benefits to workers in profit-making enterprises.”).
. FCC oversight benefitted the cable operators by, for example, enabling them to broadcast without interference. National Cable, 415 U.S. at 343, 94 S.Ct. 1146. In addition, the Court remanded for a recalculation of the fee because it determined that the fees imposed by the FCC were too broadly calculated. Id. The FCC had imposed all of the costs of regulating cable television systems to the industry and none to the general public. Id. at 341-42, 94 S.Ct. 1146. As a result, the fee *263schedule in question resembled a tax because the value of the fee was greater than the service provided to the recipient. Id.
. In re Sacred Heart Hosp. of Norristown held that reimbursement obligations to the Pennsylvania unemployment compensation fund constituted a tax entitled to priority for bankruptcy purposes. 209 B.R. 650 (E.D.Pa.1997). After considering who benefits from the reimbursement obligation and whether it is voluntary, the court concluded that “the payments are used to benefit the public generally because compensating unemployed workers reduces the chances of their becoming poor and making demands on the federal and state welfare systems and thus all taxpayers” and that the reimbursement obligation is "without a doubt ... 'involuntary.' ” Id. at 656.
. The differences between In re Jenny Lynn Mining Co., 780 F.2d 585 (6th Cir.1986), and this case are instructive. Unlike the reimbursement obligation here, the government assessment in In re Jenny Lynn Mining Co. directly benefited the applicant by licensing it to engage in operating a strip mine.
. It bears noting that failure to give the reimbursement obligation priority in bankruptcy will likely increase non-profit employers' operating costs — a result contrary to the federal and state legislative objectives. See S.Rep. No. 91-752, at 48-49, reprinted in 1970 U.S.C.C.A.N. 3606, 3617-18 (1970) (stating intent to minimize cost to non-profit organizations because they "are often dependent upon charitable contributions”). NJDOL may require from non-profit organizations “a bond or other security ... for the payment of any taxes, interest, and penalties imposed pursuant to any state tax law[.]” N.J.S.A. 54:49-2. This allows New Jersey to shield itself, in advance, from an unpaid reimbursement obligation. Generally, not requiring a bond lowers the costs to non-profit employers of doing business in New Jersey. Allowing payments in lieu of the contributory tax and not requiring a bond both reduce the cost of non-profit employers’ obligations. See Amy L. Henrich, Preferential Treatment of Charities Under the Unemployment Insurance Laws, 94 Yale L.J. 1472, 1478 n.35 (1985) ("The present value of a future debt obligation decreases as the payment is deferred into the future.”).
If the reimbursement obligation is not entitled to priority in bankruptcy proceedings, NJDOL may well require a bond from nonprofit employers. Requiring a bond works against FUTA’s stated objective to minimize the cost of non-profit organizations' participation in the unemployment compensation scheme.
. The majority did not have to reach this issue.