Dissenting Opinion by
Senior Judge Barbieri:I must respectfully dissent from the majority opinion which would hold that the Appellee-Taxpayer is entitled to a refund of inheritance taxes in the amount of $150,090.39 which the Appellee at oral argument all but conceded was properly due the Commonwealth. The majority erroneously holds that the Commonwealths failure to file a timely protest of the appraisement of the Appellees inheritance tax return precludes it from contesting the Appellees petition for a refund of the difference of the correct amount of inheritance tax due which was paid when the return was filed and the amount of inheritance tax due as shown on the return which was erroneously accepted by the appraiser.
The disposition of petitions for refunds of inheritance taxes is governed by Section 901 of the Inheritance and Estate Tax Act of 1961 (Act), Act of June 15, 1961, P.L. 373, repealed by the Act of December 13, 1982, P.L. 1006, formerly 72 P.S. §2485-901.1 Section 901 of the Act reads as follows: *600Under Section 901 of the Act, a petitioner will be entitled to a refund only where the Commonwealth is not rightfully or equitably entitled to the tax. Here, there is no question that the gifts in. question were bequests to step-grandchildren which were taxable under Sections 102(13), 403, and 404 of the Act (repealed), former 72 P.S. §§2485-102(13), 2485-403, and 2485-404, at the Class B rate of fifteen percent. This was the amount of tax paid by the Appellee to the Commonwealth although its inheritance tax return erroneously indicated that the tax due was calculated at the Class A rate of six percent. The only support the Appellee had for its claim to the Class A rate of tax was a 1981 decision from a federal district court which found the different treatment in imposing rates of inheritance taxes on bequests to stepchildren and descendents of stepchildren as unconstitutional, see Estate of Kunkel v. United States, 518 F.Supp. 690 (M.D. Pa. 1981), which was later reversed by the Court of Appeals. See Estate of Kunkel v. United States, 689 F.2d 408 (3d Cir. 1982). Since the burden of proof is upon the party seeking a refund,2 I would conclude that under the facts in this case that burden cannot be met here except by a ruling that as a matter of law the Commonwealth is not “rightfully or equitably entitled” to the tax paid. I find it impossible to so rule, since the law is clear that the Commonwealth was rightfully and equitably entitled to the inheritance tax on *601bequests to step-grandchildren at the Class B rate of fifteen percent. I would hold, therefore, that Appellee foiled to satisfy the first requirement of former 72 P.S. §2485-901 in that the Commonwealth is clearly entitled to the inheritance tax as paid and that the Appellee is not entitled to a refund.
*599 §2485-901. When refunds will be made
A refund shall be made of any tax to which the Commonwealth is not righlfully or equitably entitled, provided (1) the Commonwealth determines the refund is due, or (2) application for refund is made within the appropriate time limit as set forth in section 904 [former 72 P.S. §2485-904]. (Emphasis added.)
*601Furthermore, I believe that the Commonwealth, in any event, should be entitled to assert an equitable set-off against the Appellees claim for refund. While this precise issue may be one of first instance in Commonwealth cases, such a right is recognized in the Federal Government taxpayer suits for refunds under Section 7422 of the Internal Revenue Code of 1954, 26 U.S.C. §7422. In feet, the Federal Government is entitled to set off against a taxpayers claim for refund claims for back taxes which the Government would have been otherwise barred from asserting by the expiration of the statute of limitations. See Missouri Pacific Railroad Co. v. United States, 168 Ct. Cl. 86, 338 F.2d 668 (1964); Liberty Life Insurance Co. v. United States, 439 F.Supp. 927 (D.S.C. 1977). Federal Courts have held that the right of the Government to set off against a taxpayers claim for refund is based upon the broad equitable principle that the taxpayer is not entitled to any refund unless the taxpayer has in feet overpaid his or her taxes. See Dysart v. United States, 169 Ct. Cl. 276, 340 F.2d 624 (1965). Clearly, the principle of equitable set-off should be equally applicable to a refund claim under former 72 P.S. §2485-901 where the Commonwealth has a claim against a taxpayer which the applicable statute of limitations bars the Commonwealth from otherwise asserting.
I would, therefore, reverse the decision of the common pleas court and deny Appellees claim for refund of inheritance taxes with the exception of the $2,038.06 that the Commonwealth concedes the Appellee overpaid.
This provision is now found at 72 Pa. C. S. §1781.
While no citation of authority is needed for this proposition, we do note that the Federal Courts have held that the burden is on the taxpayer in refund suits not only to show that the Commissioner of Internal Revenue erred in his determination of tax liability but also to establish the correct amount of refund due. See United States v. Anderson, 269 U.S. 422 (1926); Union Pacific Railroad Co., Inc. v. United States, 208 Ct. Cl. 1, 524 F.2d 1343 (1975), cert. denied, 429 U.S. 827 (1976); Fireoved v. United States, 462 F.2d 1281 (3d Cir. 1972).