                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
TANYA BENNETT-BEY,            )
                              )
          Plaintiff,          )
                              )
          v.                  )       Civil Action No. 08-328 (RWR)
                              )
DOUGLAS SHULMAN,              )
                              )
          Defendant.          )
______________________________)

                          MEMORANDUM OPINION

     Pro se plaintiff Tanya Bennett-Bey has sued the Commissioner

of the Internal Revenue Service1 (“IRS”) for a refund of taxes

withheld from her paycheck and to enjoin the Commissioner to

change her tax status.    The defendant has moved to dismiss the

complaint.    Because this court lacks subject matter jurisdiction

over Bennett-Bey’s refund claim, and because Bennett-Bey has

otherwise failed to state a claim upon which relief can be

granted, the defendant’s motion to dismiss will be granted.

I.   REFUND

     Bennett-Bey appears to be seeking a refund of taxes that

have been withheld from her salary.    (See Compl. at 7 (requesting

that defendant be required to “repay all [u]nlawfully [collected




     1
      Douglas Shulman is substituted for Linda Stiff under Fed.
R. Civ. P. 25(d).
                                 -2-

debts]); Pl.’s Mot. of Opp’n to Dis. Compl. at 1 (arguing that

“the I.R.S. had no right to remove funds from my salary”).)

       On a motion to dismiss for lack of subject-matter

jurisdiction, “the plaintiff bears the burden of establishing

that the court has subject-matter jurisdiction.”    Larsen v. U.S.

Navy, 486 F. Supp. 2d 11, 18 (D.D.C. 2007).    “Because

subject-matter jurisdiction focuses on the court’s power to hear

the claim, . . . the court must give the plaintiff’s factual

allegations closer scrutiny when resolving a Rule 12(b)(1) motion

than would be required for a Rule 12(b)(6) motion for failure to

state a claim.”    Jin v. Ministry of State Sec., 475 F. Supp. 2d

54, 60 (D.D.C. 2007).    Pro se plaintiffs are not free from the

requirement to plead an adequate jurisdictional basis for their

claims.    See Briggs v. State Dep’t Fed. Credit Union, Civil

Action No. 05-1344 (GK), 2006 WL 1444009, at *2 (May 25, 2006).

        A district court has subject matter jurisdiction over

“[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, or any penalty claimed to have

been collected without authority[.]”    28 U.S.C. § 1346 (a)(1).

However, a district court’s jurisdiction is limited to tax claims

for which the plaintiff has first filed a refund claim with the

IRS.    26 U.S.C. § 7422(a) (“No suit or proceeding shall be

maintained in any court for the recovery of any internal revenue
                                 -3-

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 also United States v. Dalm, 494 U.S.

596, 601-02 (1990).   Bennett-Bey has not alleged in her complaint

that she filed a claim for a refund with the IRS before bringing

this suit.   Thus, she has failed to establish that this court has

subject matter jurisdiction over her claim for a refund.

II.   EXEMPTION

      Bennett-Bey alleges that she is exempt from paying federal

income taxes because she is a beneficiary of the Great Moorish

Estate Express Trust, which makes her “a Moorish American

Citizen” who has “[s]overeign [i]mmunity as a [c]itizen of that

[n]ation.”   (Compl. ¶ 1.)   She also seeks to enjoin the defendant

from “unlawfully conducting business on the Trust Estate.”    (Id.

at 7.)   While Bennett-Bey has not pleaded a basis for the court’s

jurisdiction over this claim, it is unnecessary if there is a

recognizable basis for jurisdiction within the complaint.    See

Kornegay v. AT&T, Civil Action No. 05-1 (PLF), 2006 WL 825622, at

*2 (D.D.C. Mar. 29, 2006) (noting it possible to find

jurisdiction even if the complaint fails to cite a statutory

basis “where ‘facts alleged in [the complaint] are sufficient to

establish . . . jurisdiction and the complaint appeared

jurisdictionally correct when filed” (alteration in original)

(quoting Andrus v. Charlestone Stone Prods. Co., 436 U.S. 604,
                                 -4-

608 n.6 (1978))).    Bennett-Bey seems to be claiming a religious

exemption from paying taxes under the Free Exercise clause (see

Pl.’s Mot. to Suppl. Pl.’s Opp’n to Def.’s Mot. to Dis. ¶ 1

(stating that the plaintiff’s “rights are being violated

according to the Constitution [o]f [t]he United States[,] in

particular . . . the [F]irst . . . Amendment”)), a claim that

arises under the First Amendment and for which a federal district

court has jurisdiction.   See 28 U.S.C. § 1331 (“The district

courts shall have original jurisdiction of all civil actions

arising under the Constitution[.]”).

     However, a complaint must also contain “a short and plain

statement of the claim showing that the pleader is entitled to

relief[.]”   Fed. R. Civ. P. 8(a)(2); see also Ashcroft v. Iqbal,

129 S. Ct. 1937, 1949 (2009).   For a plaintiff to demonstrate

that she is entitled to relief under the Free Exercise Clause,

she must plead, as an initial matter, that the government has

placed “‘a substantial[] burden’ on [her] exercise of religion

‘even if the burden results from a rule of general

applicability[.]’”   Holy Land Foundation for Relief and

Development v. Ashcroft, 333 F.3d 156, 166 (D.C. Cir. 2003)

(quoting 42 U.S.C. § 2000bb-1(a)) (first alteration in original).

Because Bennett-Bey does not allege anywhere in her complaint

that paying federal income taxes will impose a substantial burden
                                -5-

on the free exercise of her religion, she has not stated a claim

upon which relief can be granted.

                           CONCLUSION

     Under even a liberal construction of her pro se complaint,

Howerton v. Ogletree, 466 F. Supp. 2d 182, 183 (D.D.C. 2006),

Bennett-Bey is not entitled to relief.    Accordingly, the

complaint will be dismissed.   An appropriate order accompanies

this memorandum opinion.

     SIGNED this 20th day of January, 2010.


                                                 /s/
                                      RICHARD W. ROBERTS
                                      United States District Judge
