That’s Judge Gale’s tale for Lawrence J. & Estelle Mittenthal, Docket No. 998-12SL, filed 1/29/13, a designated hitter on a day when nothing else is doing at Tax Court.

Facts are simple. Larry and Stelle were assessed a deficiency, plus late file and late pay additions for 2008. Judge Gale’s Order doesn’t state whether Larry and Stelle had a chance to dispute the underlying tax deficiency, or whether they conceded the amount of tax due and unpaid, before IRS decided to levy. Howbeit, Larry and Stelle file a petition to review the levy, but in the meantime IRS grabs their 2009 overpayment to satisfy whatever Larry and Stelle owe, and moves to dismiss for mootness.

Larry and Stelle object that, although the tax may have been paid, they want to fight over the late file and late pay.

Judge Gale: “However, the Court’s jurisdiction over the underlying tax liability for 2008, including additions to tax, arises only as a result of petitioners’ challenge to respondent’s determination to proceed with the levy.” Order, pp. 1-2 (Footnote omitted).

See the omitted footnote: “Absent respondent’s attempt to levy, petitioners could not have obtained prepayment judicial review of the liabilities they dispute, which consist of additions to tax for late filing and late payment under sec. 6651. See sec. 6665(b) (allowing summary assessment of additions to tax under sec. 6651 where the additions are not attributable to a deficiency in tax).” Order, p. 2, footnote 2.

So do Larry and Stelle go to U. S. District Court or Court of Federal Claims? Unless the failure to file and failure to pay are heavy-duty dollars, it’s probably too expensive.

Bad result.