In Re Eric Deroche Mary Deroche, Debtors. Eric Deroche Mary Deroche v. Arizona Industrial Commission

ORDER

This court’s opinion, filed November 29, 2001, is hereby WITHDRAWN and replaced with the attached opinion.

With the filing of this new opinion, the panel has voted unanimously to deny the petition for rehearing. Judge W. Fletcher has voted to deny the petition for rehearing en banc, and Judges Hug and Noonan so recommend.

A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed. R.App. P. 35(f).

The petition for rehearing and the petition for rehearing en banc, filed December 13, 2001, are DENIED.

OPINION

The Bankruptcy Code provides that “an excise tax on ... a transaction occurring during the three years immediately preceding the date of the filing of the [bankruptcy] petition” is not dischargeable in bankruptcy. 11 U.S.C. § SOTlaXSXEXii). See also 11 U.S.C. § 523 (a)(1)(A). In this case, an employer failed to carry workers’ compensation insurance, and an injured employee was compensated directly from a “Special Fund” maintained by the Industrial Commission of Arizona (“Commission”). Under Arizona law, an employer who has failed to carry…