Concurring and Dissenting Opinion by
Mr. Justice Cohen:The majority opinion carefully describes the background of this proceeding. What it omits, however, is critical. To obtain the benefit of the five-year limitation period, a taxpayer must point to a judicial determination subsequent to payment of the tax holding the applicable statute unconstitutional or its interpretation erroneous. Here, Bethlehem erroneously computed its gross receipts fraction by including net profits rather than gross proceeds in the denominator of the fraction; and the Commonwealth’s taxing officers erroneously settled the tax on that basis. All this took place despite the fact that it was well known for a number of years that it was gross proceeds of securities sales that should be used. Commonwealth v. The Electric Storage Battery Company, 57 Dauph. 201 (1946) ; Commonwealth v. Eaglis Corporation, 55 Dauph. 356 (1944) ; Stradley & Krekstein, Corporate Taxation and Procedure in Pennsylvania (2d ed. 1952), 244-245.
Bethlehem’s reliance on the 1959 decision of this Court in Commonwealth v. Koppers Company, Inc., 397 Pa. 523, 156 A. 2d 328 (1959), to supply it with a “subsequent” decision is misplaced. The Koppers case dealt only with the propriety of including certain proceeds in the makeup of the fraction, not with the question of whether gross or net proceeds were to be used; in fact, it referred to the earlier cases noted above as holding that gross proceeds were the proper measure to be used when dealing with receipts from the sale of securities.
Therefore, despite the fact that the Commonwealth mistakenly accepted Bethlehem’s erroneous reports and *12thus received more tax than it was entitled to receive, it still remains that Bethlehem’s right to a refund was cut off after two years since nothing subsequently occurred to extend the statutory period to five years. Hence, I dissent to that determination of the majority.
I am in agreement with the other determination of the majority. In holding that Bethlehem cannot rely upon payments made within two years of the filing of the refund petitions when such payments were made only as a result of changes in its federal net income, the opinion is clearly correct. Section 503(a) (1) of “The Fiscal Code” speaks of petitions for refund of taxes “the payment of which refund is requested.” Surely, no refund here is requested of the additional taxes paid as a result of a change in federal net (now taxable) income; nor can I conceive of such a request since such a change is mechanical and raises no substantive issue. Furthermore, this conclusion is the only reasonable view of the matter in light of the time lag which may occur between the filing of a return and its settlement, on the one hand, and a federal audit and change on the other. This time lag may well stretch for ten years. I cannot conceive • of then exposing the Commonwealth to all forms of refund claims following a report of change, such claims being based on issues unrelated to the report of damages. I would hold that the Board of Finance and Revenue properly denied Bethlehem’s petitions for refund and lack of timely filing and affirm the Board’s action.