DISSENTING OPINION BY
Senior Judge KELLEY.I respectfully dissent. I believe that a close and thorough reading of the New Jersey Supreme Court’s opinion in American Fire & Casualty Company v. New Jersey Division of Taxation, 189 N.J. 65, 912 A.2d 126 (2006), mandates that the order of the Board of Finance and Revenue denying Selective Way Insurance Company’s petition for a refund of its retaliatory tax for the 2006 tax year be affirmed. It is well settled that the purpose of the retaliatory tax statute is to bring about equality in treatment between foreign and domestic insurance companies. See Providence Washington Insurance Company v. Commonwealth, 75 Pa. Cmwlth. 463, 463 A.2d 68 (1983). Thus, a foreign insurance company is to be treated by Pennsylvania in precisely the same manner as Pennsylvania companies are treated by the other state. United Services Automobile Association v. Commonwealth, 152 Pa.Cmwlth. 184, 618 A.2d 1155 (1992). As the Commonwealth points out, the purpose behind both the retaliatory tax statutes of New Jersey and Pennsylvania would be undermined by adopting the calculation proposed by Selective. It would *960eliminate the retaliatory tax due in the state with the lower premiums tax rate (Pennsylvania) and impose retaliatory tax in New Jersey against Pennsylvania companies. This was noted with disapproval in American Fire.
Moreover, this Court’s decision in United Services is clearly distinguishable. In that case, Texas had three possible statutory insurance premiums tax rates and the rate paid by any insurer depended upon its level of Texas investments. New Jersey’s statutory rate does not change because of the cap — it remains at 2.1%. In United Services, all insurers were eligible to obtain the lower tax rates while in New Jersey only certain companies are even eligible to seek to apply the premiums cap, those who did business in New Jersey on or before June 30,1984.
Accordingly, I would affirm the Board’s order.