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No. 95-325

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UNITED STATES, PETITIONER v. REORGANIZED CF&I FABRICATORS OF UTAH, INC., et al.

on writ of certiorari to the united states court of appeals for the tenth circuit

[June 20, 1996]

Justice Thomas , concurring in part and dissenting in part.

Section 507(a)(7)(E) creates a bankruptcy priority for excise taxes. Congress, in enacting §4971, purported to enact a tax, see 26 U.S.C. § 4971(a) ("[T]here is hereby imposed a tax . . ."), and the tax it enacted is properly considered an excise tax. See Commissioner v. Keystone Consol. Industries, Inc., 508 U.S. 152, 161 (1993) (stating, in dicta, that §4971 imposes an excise tax). It is true that New Jersey v. Anderson, 203 U.S. 483 (1906), and its progeny held that whether a state assessment is entitled to bankruptcy priority as a tax is a federal question. See id., at 492; New York v. Feiring, 313 U.S. 283, 285 (1941). It is not appropriate, however, for federal courts to perform a similar inquiry into valid taxes passed by Congress, and the majority cites no case in which this Court has denied bankruptcy priority to a congressionally enacted tax. I respectfully dissent.