                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 FLOYD BENNETT-BEY,

        Plaintiff,

        v.                                                  Civil Action No. 09-963 (CKK)
 DOUGLAS SHULMAN, Commissioner,
 Internal Revenue Service,

        Defendant.


                                 MEMORANDUM OPINION
                                     (March 3, 2010)

       Plaintiff Floyd Bennett-Bey filed this action against the Commissioner of the Internal

Revenue Service (“IRS”) for various forms of relief related to Bennett-Bey’s tax liabilities.

Defendant has moved to dismiss the complaint for lack of subject matter jurisdiction and failure

to state a claim upon which relief can be granted. Because the Court lacks subject matter

jurisdiction with respect to some of Bennett-Bey’s claims, and because Bennett-Bey has

otherwise failed to state a claim upon which relief can be granted, the Court shall grant

Defendant’s motion to dismiss.

                                 I. FACTUAL BACKGROUND

       In his Complaint, Floyd Bennett-Bey asserts that he is a “Moorish American Citizen,

Beneficiary of the Great Moorish Estate Express Trust created by the trustor Nobel Drew Ali

which [w]as executed May 10, 2000.” Compl. at 3. Bennett-Bey alleges that “[s]imultaneous

with that creation, the trustor (Noble Drew Ali) also founded the Moorish Science Temple of

America, Inc.” Id. Bennett-Bey alleges that the land in the Express Trust is a fee simple estate

conveyed to Moorish Americans. Id. Bennett-Bey attached the alleged “deed of conveyance” as
Exhibit 3 to his Complaint. See id. at 4-5, Ex. 3. According to Bennett-Bey, “[a]ll real property

within the metes and bounds described in Section #7 of the Deed of Convency is (Express Trust

Property) presently owned by the Moorish Science Temple of America, Inc.” Id. at 6. Section 7

reads as follows: “Their domination and inhabitation extended from North-East and South-West

Africa, across the great Atlantis even unto the present North, South and Central America and also

Mexico and the Atlantis Islands; before the great earthquake, which caused the great Atlantic

Ocean.” Compl., Ex. 3 at 58. Bennett-Bey states that “[a]s a wakeful beneficiary, Sovereign

people, Sovereign immunity and Sovereign rights I am confident, my rights and interest are

constitutionally protected.” Compl. at 6-7.

       Bennett-Bey contends that he has been corresponding with the IRS for more than ten

years regarding his tax status and that there are “mis-understandings” about his status as a

Moorish American citizen. Compl. at 2. Bennett-Bey states that his “exemption from Federal

Income Tax obligation [sic] is not based on or found in the Federal Tax Codes.” Id. at 3. On

January 10, 2009, Bennett-Bey sent the IRS a letter apparently responding to a previous letter

dated January 6, 2009. See Compl., Ex. 10 (1/10/2009 Letter from Bennett-Bey to T. Sisung,

IRS Settlement Officer). The letter contains many assertions regarding the Express Trust and

purports to include an offer in compromise. In a letter dated April 28, 2009, the IRS sent

Bennett-Bey a “Notice of Determination Concerning Collection Action(s) Under Section 6320

and/or 6330.” See Compl., Ex. 9 (4/28/2009 Notice). The notice of determination indicated that

Bennett-Bey’s had tax liabilities stemming from self-filed tax returns, a math error in 1999, lack

of withholdings, and late filing and that a civil penalty was assessed for a frivolous return in

2004. See id. at 4. The notice states that a collection due process hearing was held via

correspondence and that Bennett-Bey did not provide any non-frivolous responses or discuss

                                                  2
ways to pay the taxes owed. Id. at 5. The notice further indicates that a Notice of Federal Tax

Lien Filing (NFTL) was issued. Id. at 3, 6. The IRS indicated that it had determined that

Bennett-Bey was not entitled to relief from the NFTL because he had proposed no acceptable

collection alternatives. Id. at 2.

                                     II. STANDARD OF REVIEW

        The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain

statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));

accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although “detailed factual

allegations” are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the

“grounds” of “entitle[ment] to relief,” a plaintiff must furnish “more than labels and conclusions”

or “a formulaic recitation of the elements of a cause of action.” Id. at 1964-65; see also Papasan

v. Allain, 478 U.S. 265, 286 (1986). Instead, a complaint must contain sufficient factual matter,

accepted as true, to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at

570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).

        In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must

construe the complaint in a light most favorable to the plaintiff and must accept as true all

reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine

Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see also

Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (“The complaint must be ‘liberally

                                                  3
construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be

derived from the facts alleged.”). However, as the Supreme Court recently made clear, a plaintiff

must provide more than just “a sheer possibility that a defendant has acted unlawfully.” Iqbal,

129 S. Ct. at 1950. Where the well-pleaded facts set forth in the complaint do not permit a court,

drawing on its judicial experience and common sense, to infer more than the “mere possibility of

misconduct,” the complaint has not shown that the pleader is entitled to relief. Id. at 1950.

          On a motion to dismiss under Rule 12(b)(1), the plaintiff bears the burden of establishing

that the court has subject matter jurisdiction. Wright v. Foreign Serv. Grievance Bd., 503 F.

Supp. 2d 163, 170 (D.D.C. 2007). “Although a court must accept as true all factual allegations

contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a]

plaintiff[’s] factual allegations in the complaint . . . will bear closer scrutiny in resolving a

12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Id. (internal

citations and quotation marks omitted).

          Where, as here, the action is brought by a pro se plaintiff, the Court must take particular

care to construe the plaintiff’s filings liberally, for such complaints are held “to less stringent

standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-21

(1972).

                                          III. DISCUSSION

          Bennett-Bey’s Complaint, which he filed pro se, does not clearly delineate the various

claims upon which he seeks relief. The Court notes that a nearly identical complaint was filed by

Tanya Bennett-Bey1 in another case in this district before Judge Richard W. Roberts. See


          1
         Tanya Bennett-Bey, who also acted pro se in her case, listed the same home address as
the plaintiff in this case. See Complaint, Bennett-Bey v. Schulman, No. 08-328 (D.D.C. filed

                                                    4
Complaint, Bennett-Bey v. Schulman, No. 08-328 (D.D.C. filed Feb. 26, 2008). Judge Roberts

construed the allegations in that complaint as asserting two claims for relief: (1) a refund of taxes

that had been withheld from the plaintiff’s salary; and (2) a religious exemption from paying

taxes under the Free Exercise clause. See Bennett-Bey v. Schulman, No. 08-328, 2010 WL

320216, at *1-2 (D.D.C. Jan. 20, 2010). Pleadings filed pro se must be liberally construed,

Erickson v. Pardus, 551 U.S. 89, 94 (2007), and this Court agrees that Bennett-Bey appears to be

alleging a claim for a tax refund and for a constitutional exemption from taxation. In addition, it

appears that Bennett-Bey seeks to appeal a decision by the IRS issued under §§ 6320 and 6330 of

the Internal Revenue Code. The Court shall address each of these claims below. Because it is

clear that Bennett-Bey has sued Defendant based on actions taken by the United States, the Court

shall grant Defendant’s motion to substitute the United States as the proper defendant in this

case. See 28 U.S.C. § 2679(d)(1).

       A.      Request for Tax Refund

       Bennett-Bey’s first apparent request for relief is to “[r]equire Defendant to return all

Unlawfully [sic] debts collected since the execution of the Express Trust without the Plaintiff,

Floyd Bennett-Bey having to submitt [sic] any forms requesting the return of unlawfully

collected debts.” Compl. at 8. This request is best construed as a request for a refund of income

taxes withheld. See also Pl.’s Opp’n to Dismiss Compl., ¶ 4 (“The defendant claims of my

requesting a refund and or suing for a refund is taken out of context because of the operation of

law the I.R.S. had no right to remove funds from any of my accounts or change my tax status

etc.”) Defendant argues that this Court lacks jurisdiction to entertain any tax refund claim



Feb. 26, 2008).

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because Bennett-Bey has not pled any facts that indicate he filed a request for a refund with the

IRS.

        Pursuant to 28 U.S.C. § 1346, the district courts have original jurisdiction of “[a]ny civil

action against the United States for the recovery of any internal-revenue tax alleged to have been

erroneously or illegally assessed or collected.” 28 U.S.C. § 1346(a)(1). However, § 7422(a) of

the Internal Revenue Code states that “[n]o suit or proceeding shall be maintained in any court

for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed

or collected . . . until a claim for refund or credit has been duly filed with the [IRS] . . . .” See

United States v. Dalm, 494 U.S. 596, 601-02 (1990) (“[U]nless a claim for refund of a tax has

been filed within the time limits of [26 U.S.C.] § 6511(a), a suit for refund, regardless of whether

the tax is alleged to have been ‘erroneously,’ ‘illegally,’ or ‘wrongfully collected,’ §§ 1346(a)(1),

7422(a), may not be maintained in any court.”)

        Here, Bennett-Bey has failed to plead any facts that indicate he has filed an

administrative request for a refund with the IRS. Moreover, he fails, in either of his opposition

briefs, to rebut Defendant’s contention that there is no proper basis for subject matter jurisdiction

based on Bennett-Bey’s failure to file an administrative refund request. Therefore, the Court

finds that it lacks subject matter jurisdiction over Bennett-Bey’s claim for a tax refund.

        B.      Constitutional Exemption from Taxation

        Bennett-Bey’s second prayer for relief is to “Respect My tax exempt status and

Constitutional Rights as a Moorish American Citizen, (Beneficiary).” Compl. at 8. Bennett-Bey

claims that he is exempt from paying federal taxes because he is a beneficiary of the Great

Moorish Estate Express Trust. See Compl. at 3. Plaintiff ascribes the origin of the land in the

trust to the Moorish Holy Koran, excerpts of which are attached to the Complaint as an exhibit.

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See id. at 3-4, Ex. 3. Affording Bennett-Bey’s pro se Complaint a liberal construction, the Court

must consider whether he is asserting a constitutional claim for a religious exemption from

taxation. Federal courts have jurisdiction over such claims under 28 U.S.C. § 1331, which is one

of the bases for jurisdiction asserted by Bennett-Bey in his complaint. See Compl. at 1.

       However, the complaint, even liberally construed, does not state a claim that the federal

government has violated Bennett-Bey’s free exercise of religion. To make out such a claim, a

plaintiff must show that the government has “substantially burdened” his exercise of religion.

See Holy Land Found. for Relief & Devel. v. Ashcroft, 333 F.3d 156, 166 (D.C. Cir. 2003)

(quoting 42 U.S.C. § 2000bb-1(a)). Bennett-Bey’s Complaint is entirely devoid of allegations

that federal taxes impose any burden, let alone a substantial one, on his exercise of religion.

Accordingly, Defendant’s motion to dismiss shall be granted with respect to any claim of

religious exemption from taxation.

       C.      Appeal from IRS Determinations

       Bennett-Bey’s fourth prayer for relief is to “Deny the Defendants [sic] letter of

Determination dated April 28, 2009 Certified Mail receipt number . . . .” Compl. at 8. This letter

is attached as Exhibit 9 to the Complaint and is titled “IRS Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330.” See Compl., Ex. 9. Internal Revenue

Code §§ 6320 and 6330 provide for taxpayers to be notified of tax liens and levies imposed by

the IRS. The Notice of Determination informed Bennett-Bey that he could file an appeal of the

IRS’s determination in the United States Tax Court within 30 days. Compl., Ex. 9 at 1. The

Notice further informed Plaintiff that “[i]f an appeal is filed in the incorrect court (e.g., United

States District Court), you will not be able to refile in United States Tax Court if the time period

for filing a Tax Court petition has expired.” Id.

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        It appears that Bennett-Bey’s Complaint is an attempt to appeal the IRS’s determination

in this Court. Indeed, Bennett-Bey captioned his Complaint as “Complaint for Relief from the

I.R.S. Notice of Determination and Letter of Collection Action(s) Under Section 6320, 6330 and

any I.R.S. Action or Tax Codes.” See Compl. at 1. Internal Revenue Code § 6330(d)(1)

provides that an appeal may be filed with the Tax Court; it does not provide for an appeal to a

district court. See I.R.C. § 6330(d)(1) (“The person may, within 30 days of a determination

under this section, appeal such determination to the Tax Court (and the Tax Court shall have

jurisdiction with respect to such matter).”) “That Congress created jurisdiction in the Tax Court

for certain appeals under § 6330(d) means that there is not a duplicate cause of action in a United

States District Court under the [Administrative Procedure Act].” Robinette v. Comm’r, 439 F.3d

455, 460 n.4 (8th Cir. 2006); see also Yuen v. United States, 290 F. Supp. 2d 1220, 1222 (D.

Nev. 2003) (“[J]udicial review of a Notice of Determination upholding the IRS’s collection

activity for Plaintiff’s underlying tax liabilities . . . lies with the United States Tax Court, not th[e

District Court].”) Because there is no remedy under the APA, which is the default statute

providing for review of agency actions, see 5 U.S.C. § 704, the Court finds that it

lacks jurisdiction to review the IRS’s Notice of Determination under § 6330(d).

        D.      Other Possible Causes of Action

        Bennett-Bey’s third prayer for relief is to “Stop the Defendant from unlawfully

conducting business on the Trust Estate.” Compl. at 8. However, this request for relief can only

be construed as duplicative of the claims already addressed by the Court, and therefore the Court

need not consider it separately.

        Bennett-Bey asserts that jurisdiction in this action is based on 28 U.S.C. §§ 1340, 1345,

1331, 1346, 1361, and 26 U.S.C. §§ 7402 and 7429. See Compl. at 1. Of these provisions, only

                                                    8
26 U.S.C. § 7429 suggests a plausible alternative cause of action. Section 7429 provides that a

taxpayer may bring a civil action against the United States for a determination of whether a levy

made under § 6331(a) less than 30 days after notice and demand is reasonable under the

circumstances. See 26 U.S.C. § 7429. Defendant does not address this issue in his motion to

dismiss. However, Bennett-Bey has not alleged any facts pertaining to such a levy in his

Complaint. Therefore, it is clear that Bennett-Bey has failed to state a claim for relief under 26

U.S.C. § 7429. Accordingly, the Court shall grant Defendant’s motion to dismiss the Complaint

in its entirety.

                                       IV. CONCLUSION

        For the foregoing reasons, the Court shall GRANT Defendant’s [4] Motion to Dismiss

and dismiss this case in its entirety. An appropriate order shall accompany this Memorandum

Opinion.



Date: March 3, 2010
                                                        /s/
                                                      COLLEEN KOLLAR-KOTELLY
                                                      United States District Judge




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