129 F.3d 127
80 A.F.T.R.2d 97-7647, 97-2 USTC  P 50,901
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.David RENDEL;  Rachel Rendel, Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee.
No. 97-15171.
United States Court of Appeals, Ninth Circuit.
Argued by Telephone and Submitted Oct. 1, 1997.Decided Oct. 23, 1997.

Appeal from the United States District Court for the Northern District of California, No. CV-96-01120-DLJ;  D. Lowell Jensen, District Judge, Presiding.
Before:  FLETCHER, WIGGINS and RYMER, Circuit Judges.


1
MEMORANDUM*


2
David and Rachel Rendel appeal the summary judgment entered in favor of the IRS in their tax refund suit.  We affirm.


3
Even though the IRS could no longer seek to collect the nonrebate refund erroneously paid to the Rendels through a suit pursuant to I.R.C. § 7405, and the original assessment of their 1984 tax liability was extinguished when the Rendels' check was cashed, they voluntarily returned the refund to which they were not entitled (with interest) to the IRS.  The IRS may properly keep that money, because it did not, exceed the amount of the Rendels' tax liability.  See Lewis v. Reynolds, 284 U.S. 281 (1932).


4
We have carefully considered each of the cases upon which the Rendels rely, but none involves a voluntary payment by the taxpayer that equals the tax liability.


5
AFFIRMED.



*
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.  R. 36-3


