UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20105

APG 3, INC.,

Plaintiff-Appellant, VERSUS

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas (H-97-CV-3055) December 14, 1999

Before POLITZ, GARWOOD and DAVIS, Circuit Judges.

PER CURIAM:*

After reviewing the record and considering the briefs of the

parties and their oral argument, we agree with the district court

that plaintiff failed to demonstrate that it filed a timely

administrative claim for a tax refund. Therefore, for essentially

the reasons stated by the magistrate judge in her November 6, 1998

report and recommendation, we agree that the district court did not

have jurisdiction to consider this suit. Accordingly, the judgment

of dismissal of the district court is modified to a judgment

dismissing this suit without prejudice for lack of jurisdiction.

The judgment of the district court is

AFFIRMED as modified.

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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