dissenting:
All fifty states have enacted some form of mandatory workers’ compensation scheme, which requires an employer to provide workers’ compensation insurance for its employees. Chateaugay I, 158 B.R. at 634. With regard to how employers may obtain this insurance, there are two general variations. Some state systems require the employer to purchase insurance directly from the state. See Payne, 27 B.R. at 815. Other states, however, allow the employer to purchase the required coverage from private sources, including bonded self-insurance and private commercial insurance companies. See Chateaugay I, 153 B.R. at 638-39.
The Special Fund of the ICA is mandated by Arizona statue1 to provide compensation benefits to injured employees whose employers violated state law by failing to provide workers’ compensation coverage. The Arizona scheme directs the ICA to collect reimbursement from delinquent employers for the monies expended by the Special Fund to provide benefits for those injured employees.
In contrast to the Special Fund, no private insurers are obligated to pay benefits on behalf of the injured workers of uninsured employers. Thus, competing reimbursement claims by private insurers are highly improbable, if not inconceivable. If an unpaid reimbursement claim constitutes an “excise tax” as a matter of bankruptcy law, the claim is nondischargeable in an individual’s bankruptcy. New Neighborhoods, 886 F.2d at 719. The Ninth Circuit has found that the characterization of an obligation as a “tax” in the unique context of an elaborate statutory scheme, such as that created by the Bankruptcy Code, will generally not be extended to non-bankruptcy eases. See e.g., Union Pacific Railroad Company v. Public Utility Commission of Oregon, 899 F.2d 854 (9th Cir.1990) (refusing to apply Lorber test to non-bankruptcy issue at hand) (citing Massachusetts v. United States, 435 U.S. 444, 460 n. 18, 98 S.Ct. 1153, 1163-64 n. 18, 55 L.Ed.2d 403 (1978)).
Although “excise tax” is not defined in the Bankruptcy Code, it was defined by the United States Supreme Court as a “pecuniary obligation laid upon individuals or their property, regardless of their consent, for purposes of defraying the expenses of government or undertakings authorized by it.” Feiring, 313 U.S. at 285, 61 S.Ct. at 1029. In Lorber, the Ninth Circuit identified four factors for evaluating whether a payment to a government agency is a tax under federal law. A tax is: (1) an involuntary pecuniary burden imposed on individuals or property; (2) imposed by, or under the authority of, the legislature; (3) for public purposes such as for defraying expenses of government or governmental undertakings; (4) imposed under the police or taxing power of the state. Id. at 1066. Although the Lorber test was developed under the former Bankruptcy Act, it has subsequently been applied in cases under the Bankruptcy Code, indicating its continued viability. George, 95 B.R. at 720.
1. Initial “Fee” vs. “Tax” distinction: Reimbursement Claims Are Not “Fees” Under the Lorber Rationale
While the majority contends that reimbursement claims constitute “fees” under the Ninth Circuit’s Lorber rationale, such a holding is contrary to the vast majority of case law addressing this issue. Payne, 27 B.R. at 813-14 (explicitly rejecting argument that assessments and reimbursement claims were “fees” under Lorber rationale); E.A Nord Co., 75 B.R. at 636-37 (finding that Washington state assessment was a “tax” and not a “fee” under Lorber rationale); see also Suburban II, 36 F.3d at 488 (criticizing Lorber test as lenient, but finding reimbursement claim satisfied Ninth Circuit’s Lorber definition of “excise tax”); In re Chateaugay, 177 B.R. 176, 182-85 (S.D.N.Y.1995) (“Chateau-gay II ”) (finding reimbursement claims satisfied Lorber test, denying priority status under § 507(d)); Chateaugay I, 153 B.R. at *253638-41 (finding that reimbursement claims satisfied Lorber test, denying priority status based on Payne “non-tax characteristics” factor); Hutchinson, 135 B.R. at 891 (holding ICA reimbursement claims are “excise taxes” under Lorber test).
The Chateaugay I court expressly rejected the argument that premium assessment claims and reimbursement claims were “fees” under the Lorber rationale. Chateaugay I, 153 B.R. at 638-39; see also E.A. Nord 75 B.R. at 636-37. The Lorber court found that a sewer surcharge was a fee since it was “for services provided to the industrial users of the system ... rather than to the general local population.” Lorber, 675 F.2d at 1067. While a tax is an exaction for a public purpose, a fee relates to an individual privilege or benefit to the payer. Chateaugay I, 153 B.R. at 638. Premium assessment claims and reimbursement claims are not fees which confer a benefit on the employer separate from the benefit to the general public. Id. These assessments are for the public purpose of creating a fund to pay workers’ compensation claims, thus, benefitting the general public who does not have to support the claimant employee. Id. (citing Suburban Motors, 134 B.R. 617, 624 (Bankr.S.D.Ohio 1991)); Chateaugay II, 177 B.R. at 184.
2. Purely “Public” Schemes: In Systems Where Employers Lack a Private Insurance Option a Direct Workers’ Compensation Assessment by the State Against an Employer is an Excise Tax in Bankruptcy
• The prevailing rule is that under a workers’ compensation scheme where employers are directly assessed by the state, the direct assessment is an “excise tax” in bankruptcy. Chateaugay I, 153 B.R. at 639; Payne, 27 B.R. at 815. An early line of cases held that such assessments were not for public purposes, but were instead for the benefit of a discrete class, and thus were not taxes. Id. (citing In re Farrell, 211 F. 212 (W.D.Wash.1914)); In re Eureka Paper Co., 44 Am. Bankr.Rep. 179 (N.D.N.Y.1919); In re Rockaway Soda Water Mfg. Co., 36 Am.Bankr.Rep. 640, 226 F. 520 (E.D.N.Y.1915). However, that rationale has been criticized and rejected. See Pan American Paper, 618 F.2d at 162, n. 3; Ernst v. Hingeley, 11 Wash.2d 171, 118 P.2d 795 (1941); C.S. Barlow & Sons v. H & B Lumber Co., 153 Wash. 565, 575, 280 P. 88, 91 (1929).
As noted above, the “public purpose” of workers’ compensation systems is to compensate those employees who might otherwise require public support if their common law tort claims could not be successfully asserted. New Neighborhoods, 886 F.2d at 718-19; accord Chateaugay II, 177 B.R. at 184; In re Hutchinson, 135 B.R. 890 (Bkrtcy.D.Ariz.1992); E.A. Nord, 75 B.R. at 636. Although this purpose may also be regarded as a funding mechanism for a specific state undertaking, that does not diminish the public purpose that these systems serve. New Neighborhoods, 886 F.2d at 719. Furthermore, the punitive and contingent nature of such a tax does not detract from its character as an excise tax. Beaman, 9 B.R. at 542.
3. First Lorber Factor — “Involuntary” Pecuniaiy Obligation: Courts are Split in Jurisdictions Where Private Workers’ Compensation Insurance is Allowed
To qualify as an excise tax under the Lor-ber factors, the pecuniary obligation at issue must be “involuntary.”2 In Chateaugay I and Chateaugay II the courts recognized that the availability of a “private” insurance option in a statutory scheme does not affect the involuntary nature of the underlying obligation to provide workers’ compensation insurance. Chateaugay II, 177 B.R. at 183-84; Chateaugay I, 153 B.R. at 639; accord Payne, 27 B.R. at 814. Also, in New Neighborhoods, the state’s workers’ compensation system allowed a private source, bonded self-insurance. New Neighborhoods, 886 F.2d at 716. Notwithstanding that a private source *254was allowed, the Fourth Circuit held that the state’s premium claims were involuntary “excise taxes” since employers were compelled to participate in the system whether they paid into the fund or carried substitute insurance. New Neighborhoods, 886 F.2d at 719.3
Finally, a primary concern voiced by the Sixth Circuit in Suburban I and Suburban II, was that where a state scheme allows private insurance it would be unfair to consider state claims “taxes” while the competing claims of unpaid private insurers would be treated as general and unsecured. Suburban I, 998 F.2d at 342; Suburban II, 36 F.3d at 488-89. However, while such a concern may exist with regard to state premium assessment claims, the same danger is not applicable in considering the narrow issue of reimbursement claims since there are no private insurers competing with the Special Fund to pay benefits on behalf of the injured employees of uninsured employers.
4. Reimbursement Claims
Where a state pays benefits on behalf of the injured employee of an uninsured employer, courts are split as to whether a state’s claim for reimbursement is an excise tax entitled to priority treatment in bankruptcy. Courts that reach the narrow reimbursement issue generally agree that both the obligation to carry insurance and the obligation to reimburse a state’s special fund satisfy the Ninth Circuit’s Lorber factors. In re Payne, 27 B.R. at 814; Hutchinson, 135 B.R. at 891; Beaman, 9 B.R. at 542; Chateaugay II, 177 B.R. at 182-84; Chateaugay I, 153 B.R. at 637-41; see also Suburban II, 36 F.3d at 488-89.
In Suburban II, the Sixth Circuit found that reimbursement claims satisfied the Lor-ber definition of “excise taxes.” See Suburban II, 36 F.3d at 488. However, the Suburban II court criticized the Lorber factors as being too permissive 4 and added two criteria to the Ninth Circuit test that are intended to restrict the “public purpose” prong.5 The Suburban II court found that a state’s reimbursement claim did not satisfy these two additional criteria and denied priority status. Id. at 489. Other courts have denied priority status to reimbursement claims under Section 507(d) or by adding a step to the Lorber analysis comparing the “tax” and “non-tax” characteristics of the claim. See e.g. Chateaugay II, 177 B.R. at 184-85 (denying priority under § 507(d)); Payne, 27 B.R. at 816-17 (comparing tax and non-tax characteristics); accord Chateaugay I, 153 B.R. at 641. In application, additional criteria do not appear to clarify the Lorber analysis, and may in fact merely add to the confusion in this problematic area.
In contrast, bankruptcy courts in the Ninth Circuit have applied the Lorber analysis and found that the reimbursement claims of special funds are nondischargeable excise taxes in bankruptcy. Beaman, 9 B.R. at 542; Hutchinson, 135 B.R. at 891. The Beaman court held that a reimbursement claim was a nondischargeable excise tax imposed upon those who occupy the status of employers who have not obtained insurance required by law. Beaman, 9 B.R. at 542. In Hutchinson, the bankruptcy court held that the ICA’s reimbursement claim received Section 507(a)(7)(E) tax priority since the reimbursement obligation was mandatory and served an important governmental interest. Hutchinson, 135 B.R. at 891.
In the instant case, the Lorber factors are satisfied. Furthermore, no private creditors compete with the state to provide benefits for the injured employees of uninsured employ*255ers. Thus, notwithstanding the concerns expressed by the Sixth Circuit in Suburban I and Suburban II, there are no similarly situated private creditors to be prejudiced. Also, reimbursement claims are assessed universally against the delinquent employers of injured workers according to Arizona’s statutory scheme.
Although under the Lorber standard many government claims may be “excise taxes” for purposes of Section 507(a)(7), that result in the instant ease is consistent with the purpose of Congress in providing for priorities in bankruptcy. See New Neighborhoods, 886 F.2d at 720 (citing Feiring, 313 U.S. at 285, 61 S.Ct. at 1029). To hold otherwise with respect to reimbursement claims would benefit only that class of delinquent employers who fail to obtain worker’s compensation insurance in violation of state statute. Accordingly, I would AFFIRM.
. A.R.S. §§ 23-907 and 23-1065.
. In the instant case, Camilli argues that since her decision not to carry workers' compensation insurance (a statutory violation) was voluntary, this element of the Lorber test is not satisfied. This argument has been rejected by other courts and is without merit. Beaman, 9 B.R. at 541 (“[nleither compliance with the law nor payment of the tax imposed is elective once benefits are paid to an injured worker"); see also Williams v. Motley, 925 F.2d 741, 744 (4th Cir.1991).
.To limit the class of claims afforded priority status under the Lorber rationale, some courts deny priority status where a state’s scheme allows for private insurance. See Suburban I, 998 F.2d at 342 (suggesting that if a state allowed employers to purchase private insurance it would be unfair to call state-collected premiums "taxes” while treating unpaid private insurance premiums as general unsecured claims); Suburban Motor II, 36 F.3d at 488 (finding that by allowing private sources, including bonded self-insurance, the “public welfare" becomes less dependent on the financial soundness of the state system); Metro Transp. Co., 117 B.R. at 154.
. Suburban II, 36 F.3d at 488 (citing Suburban I, 998 F.2d at 341).
. These two additional factors are: (1) that the pecuniary obligation be universally applicable to similarly situated entities; and (2) that according priority treatment to the government does not disadvantage private creditors with like claims. Suburban II, 36 F.3d at 488.