                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT               September 24, 2004
                      _______________________
                                                         Charles R. Fulbruge III
                            No. 03-41698                         Clerk
                          Summary Calendar
                      _______________________

                       MAX W. KILLINGSWORTH,

                        Plaintiff-Appellant

                                 v.

                     UNITED STATES OF AMERICA,

                       Defendant - Appellee,

                        --------------------
           Appeal from the United States District Court
                 for the Eastern District of Texas
                        --------------------

Before JONES, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

     In this tax refund case, Appellant Max Killingsworth appeals

from the district court’s dismissal of his lawsuit, based on its

ruling that he failed to file it within the applicable statute of

limitations.   Because we agree that the suit was untimely, we

affirm.

     This case began when Applied Polymer Technology,

Killingsworth’s former employer, failed to pay over federal

withholding tax to the Internal Revenue Service (“IRS”) for the


     *
      Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.

                                 1
three quarters ending December 31, 1989, March 30, 1990, and June

30, 1990.    The IRS determined that Killingsworth, who worked as

Applied Polymer Technology’s general manager until the end of

June 1990, was a responsible person under 26 U.S.C. § 6672.       This

provision provides, among other things, that a person who is

responsible for willfully failing to pay over tax is liable for a

penalty equal to the total amount of the tax.       26 U.S.C. §

6672(a).    Acting under this section, the IRS assessed

Killingsworth a penalty of $64,824.98 for the three quarters.

The penalty was contained in a single assessment.       In response,

Killingsworth paid a portion of the penalty and filed an

administrative refund claim.

     Killingsworth’s claim was disallowed on June 4, 1996.        The

letter notifying Killingsworth of the disallowance informed him

that if he wanted to sue for recovery, he had to do so within two

years of the date of the letter.       It is undisputed that

Killingsworth did not file suit within that time limit.

     Instead, after receiving a January 1999 notice of the IRS’s

intent to collect the penalty, Killingsworth requested a

collection due process hearing.    The IRS Office of Appeals

conducted the hearing, but determined that the IRS could proceed

with the collection.    Shortly afterwards, Killingsworth filed a

complaint in district court, seeking review of the Office of

Appeals’ decision and seeking to abate the penalty.       This

original suit was dismissed without prejudice upon the parties’

                                   2
joint motion.

     After the dismissal, Killingsworth made a partial payment

and filed new administrative claims.    The current lawsuit, a tax

refund suit under 26 U.S.C. §7422, followed in December 2001,

over five years after Killingsworth’s original refund claim was

disallowed.

     The United States moved for dismissal, contending that

Killingsworth’s claims were barred by the two-year statute of

limitations found in 26 U.S.C. § 6532.    Further, the United

States argued that compliance with § 6532 was jurisdictional

because the section waived sovereign immunity.      The district

court agreed, found the refund claim untimely, and dismissed the

lawsuit.    Killingsworth timely appealed.

     Killingsworth now challenges the district court’s conclusion

that it lacked jurisdiction because the refund claim is time-

barred.    We review the district court’s jurisdiction decision de

novo.    See In re Bissonnet Inv., 320 F.3d 520, 522 (5th Cir.

2003).

     The limitations period in this case is particularly

important because it is jurisdictional.      Section § 6532 limits

when a taxpayer may bring a lawsuit against the United States.

“It is well-established that, if a waiver of sovereign immunity

contains a limitations period, a plaintiff’s failure to file his

action within that period deprives the court of jurisdiction.”


                                  3
Gandy Nursery, Inc. v. United States, 318 F.3d 631, 637 (5th Cir.

2003).   Such a waiver is strictly construed in favor of the

sovereign.    Bank One Tex., N.A. v. United States, 157 F.3d 397,

402 (5th Cir. 1998).   Despite Killingsworth’s arguments to the

contrary, the limitations period may not be waived because it is

jurisdictional.    See Gandy, 318 F.3d at 637.

     The Internal Revenue Code provides that refund claims must

be filed within two years “from the date of mailing by certified

mail or registered mail by the Secretary to the taxpayer of a

notice of the disallowance of the part of the claim to which the

suit or proceeding relates.” 26 U.S.C. § 6532(a)(1).    This period

may be extended by agreement.   26 U.S.C. § 6532(a)(2).   However,

actions by the IRS after it mails the notification of

disallowance will not extend the period.   26 U.S.C. § 6532(a)(4).

     Under this law, Killingsworth’s original lawsuit was

untimely because it was filed after the two-year period.    The

present lawsuit (his second) was filed even later.   Thus, the

district court did not err when it concluded that Killingsworth’s

lawsuit should be dismissed.

     Killingsworth raises a few arguments in an attempt to avoid

this bar.    He contends that he filed a refund claim for only one

of the quarters.   Nevertheless, the assessment was singular,

covering all three quarters, and his challenge to the assessment




                                  4
was viewed as a challenge to the total assessment amount.1

Killingsworth’s other contentions concern his substantive claims,

particularly the IRS’s determination that he was a responsible

person.   Because jurisdiction is lacking, we cannot consider

these arguments.

     For these reasons, we affirm the dismissal of Killingworth’s

claims.

     AFFIRMED.




     1
      Further, Killingsworth would not be able to maintain his
suit without first filing an administrative refund claim. See 26
U.S.C. § 7422(a).

                                 5
