INDIVIDUAL'S REFUND SUIT DISMISSED AS UNTIMELY.

                 IN THE UNITED STATES DISTRICT COURT

[2] Plaintiff's 1988 tax return was subsequently selected for audit. Defendant determined that plaintiff owed $2,209.79 in taxes and $618.07 in interest and penalties. Despite this finding, on June 17, 1996, plaintiff mailed an amended tax return (Form 1040X), claiming an income tax refund of $4,775 with respect to his 1988 tax return. on July 16, 1996, defendant sent a notice of claim disallowance to plaintiff, explaining that plaintiff's amended refund request would not be granted. On September 16, 1996, plaintiff sent a letter attempting to appeal defendant's decision. Defendant reiterated its disallowance in a letter dated March 5, 1997. Plaintiff then brought suit in this court on March 5, 1999 to challenge the disallowance.

[3] Before the court is defendant's motion to dismiss for lack of subject matter jurisdiction. For the following reason, defendant's motion is GRANTED.

[4] Barring consent, sovereign immunity prevents suit against the United States for recovery of a monetary judgment. See United States v Testan, 424 US 392, 399 (1976). A statute of limitations requiring that suit against the United States be brought within a certain period of time is a condition of the government's consent to be sued. See United States v. Mottaz, 476 US 834, 841 (1986). For this reason, if an action against the United States is commenced after the statute of limitations has run, sovereign immunity bars suit and the court lacks jurisdiction to entertain the action. See Caton v United States, 495 F2d 635, 637 (9th Cir 1974). The statute of limitations for suits attempting to recover erroneously collected taxes is two years from the date that a notice of disallowance is mailed. See 26 USC sections 7422(a) and 6532(a)(1).

[5] In the present case, defendant mailed a notice of disallowance on September 16, 1996, explicitly stating that the claim for a refund would not be granted. Denier Decl, Exh D. The letter also stated that "the 2-year (statute of limitations] period begins from the mailing date of this letter." Denier Decl, Exh D.

[6] Plaintiff filed suit on March 5, 1999, more than two years after the notice of disallowance was mailed and clearly after the statute of limitations had run. The court, therefore, lacks subject matter jurisdiction over this action. Defendant's motion to dismiss for lack of jurisdiction is be GRANTED. The clerk shall terminate all pending motions and close the file.

[7] IT IS SO ORDERED.

                                   Vaughn R. Walker