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the notices involving the Bank transactions were the result of
her unconstitutional and/or otherwise improper selective enforce-
ment of the tax laws against him, Radcliffe, and BOT. Nonethe-
less, we have analyzed the various factors relied on by peti-
tioner in advancing that contention. Under the circumstances
presented here, we conclude that creation of such a presumption
under rule 301 of the Federal Rules of Evidence is not warranted
or appropriate. Thus, petitioner has the burden of going forward
with evidence to establish that respondent's determinations in
the notices involving the Bank transactions violated his Fifth
Amendment rights and/or constituted an abuse of discretion by
respondent.
A. Petitioner's Constitutional Claim
Petitioner alleges on brief that respondent's determinations
with respect to the Bank transactions resulted from her selective
enforcement of the tax laws and that, consequently, respondent
has violated his constitutional right to equal protection of the
law under the Fifth Amendment.138 To prevail on such an allega-
tion, petitioner must show (1) that he was singled out for audit
and deficiency determination while others similarly situated were
not and (2) that respondent's selection of him was based upon
constitutionally impermissible considerations such as race,
138 Although the Fifth Amendment contains no equal protection
clause, its due process guarantees incorporate similar prin-
ciples. Nationalist Movement v. Commissioner, 102 T.C. 558, 594
(1994), affd. 37 F.3d 216 (5th Cir. 1994).
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