Wednesday, December 30, 2009

Watch what you report

This is part of an occasional series illustrating the ways that the states manage to find out about you not paying your taxes. Not that you would do anything like that.

The first method we'll talk about is by comparing numbers. This article caught my eye because it describes how a convenience store got busted for collecting sales taxes on tobacco and liquor, but not bothering to pay that money to the state. The amount of the taxes, depending on how you read the article, was probably over $300,000. Seems like this guy might be getting fitted for the orange jumpsuit. I mean, they mention "felony" several times in the article. Here's the press release if the above link doesn't work. And there's a picture!

The state figured it out because Texas now requires alcohol and liquor distributors to report their sales to individual stores to the state. By comparing what the distributors said they sold, to what the retailer reported as taxable sales, they can start focusing their auditors on the real problems.

You actually don't hear that much about this kind of comparison and data mining. It seems like comparing state income tax and/or franchise tax returns would also be on the agenda as well. But hey, it's just me. Still, it's nice to see Texas is thinkin'

So watch out. If your numbers don't jibe with the numbers someone else is reporting, it could be orange casual wear for you too.

No posting tomorrow on 12/31/09. See you on Monday. Happy New Year.



The Sales Tax Guy
http://salestaxguy.blogspot.com

See disclaimer and research the issues thoroughly before making decisions

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Tuesday, December 29, 2009

Sales Tax / Use Tax News

These are gleanings from newsletters, etc. I have not included all of the events, nor have I provided much detail. As usual, the disclaimer applies - check this kind of thing out yourself. I just want to give you a heads-up.

I
n New York, maple syrup candy, fudge and halva (whatever that is) are taxable, even if sold out of a bakery. Sushi can be either taxable or non-taxable depending on the way it's sold. And fruit baskets are not taxable. New York Advisory Opinion TSB-A-09(54)S, 10/09/2009

Even though a child care service operates, for all intents and purposes, a private playground, their fees are still not taxable as admissions. They operate a child care service. New York Advisory Opinion TSB-A-09(53)S, 12/03/2009

New York has published a new guide for exempt organizations. New York Department of Taxation & Finance Publication 843, 12/01/2009


In Minnesota, credits received by the seller from the manufacturer are not considered part of the sales price and gross receipts. Northern X-Ray Co. v. Commissioner of Revenue, Minn. Tax Ct., Dkt. No. 7945 R, 12/08/2009


In Missouri, yoga sessions are taxable. So relax. Missouri Private Letter Ruling LR 5955, 11/06/2009


The Pittsburgh, Pennsylvania parking tax is 37.5% (gasp). Remind me not to park my car there. 2010 Pittsburgh Parking Tax Bulletin, 12/15/2009


Rhode Island updated their food and beverage regulations SU 09-59, R.I. Division of Taxation, effective 01/01/2010; rentals and leases SU 09-62, R.I. Division of Taxation, effective 01/01/2010; and electronic funds transfers EFT 09-01, RI Division of Taxation, effective 01/01/2010.


Blasting in a quarry is considered part of the manufacturing process therefore explosives, detonators, etc. are considered exempt as manufacturing equipment. Illinois Dept. of Rev. General Information Letter ST 09-0149-GIL, 11/09/2009

Freight charges in Illinois were taxable because they were not agreed to separately. Another in a series of confusing positions. Illinois Dept. of Rev. General Information Letter ST 09-0150-GIL, 11/13/2009


Ohio has released the situs rules for 2010. Basically, if it's an intrastate shipment of TPP, the sale is sourced to the location where the order is received. If the order is shipped from outside of Ohio, it's sourced to the destination. For services, it's simply where the customer receives the service. And consumers won't have to worry about additional use tax for their location if different from the seller's location. Ohio Tax Information Release ST 2009-03, 12/01/2009


Colorado is allowing online filing for sellers with only one location Colorado Department of Revenue InfoEmail, 12/18/2009


Layaway payments not subject to sales tax in Indiana. Indiana Information Bulletin ST78, 12/01/2009


A seller doesn't have nexus in New Mexico, even though they briefly store their inventory in the state prior to delivering it to the customer. New Mexico Taxation and Revenue Dept. Ruling 401-09-5, 12/03/2009


Campground have to charge sales tax on rentals if there is a structure involved, but if they're simply renting a plot of land on which camper will pitch a tent or park an RV, there is no sales tax. Vermont Technical Bulletin TB-50, 12/14/2009


Local rate changes

Alabama
Missouri
Ohio
Texas


State rate changes
Connecticut (rate didn't decrease)


The Tax Foundation has published a review of significant state tax changes in 2009, It's mostly about rate changes and other very high level stuff, but there is a summary section near the bottom that is good reading.


SpeedTax has a short article on the effort by California to enforce use tax reporting.


The Sales Tax Guy
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Monday, December 28, 2009

Illustrations and Parables: The Generator

I was doing a seminar in Mobile, Alabama when I picked this one up.

Background

Mobile, if you don't regularly watch the Weather Channel, probably gets more than their share of hurricanes. This particular company had a plant in the area. They were far enough back from the beach to not have a problem with water or storm surges, but they were still subject to wind damage. And the biggest problem was power outages that apparently could last for more than a week. So they bought a big, honkin' generator to provide backup power.

However, they didn't keep the generator at the plant. It was an outside generator and they didn't want to worry about wind damage. They stored it in Houston, Texas at the facility of the dealer who sold them the generator. You see, the hurricane that would tear up Mobile, is not going to be the hurricane that goes through Houston. This is the ultimate in "off site" backup.

The Plan

After the storm passes through, they'll call up the dealer and tell him to deliver the generator. That would probably take a day or so. In the meantime, they'll clean up the site and do any other preparatory work necessary.

The generator arrives, they set it up, and voilĂ , power! They can start making stuff, shipping to their customers, and providing employees with a much needed paycheck.

The Problem

The state of Texas audited the dealership and noticed the generator (probably more than one - storing these things is probably a nice little side business for them). After finding out who owned it, Texas went after the company in Alabama asserting that they had nexus in Texas. After all, they did have a pretty big and expensive piece of equipment sitting in Texas. Which means they have a physical presence in Texas. Right?

The company believed the auditor and paid their back taxes, penalties and interest and registered in Texas.

Duh?

I asked the guy who was telling me this story, "And you believed the auditor?"

"Well, yeah. He's the auditor, he knows what he's talking about."

"Do you have any other physical presence in the state? And I reeled off the various factors."

"No. Just the generator," he said, starting to feel nervous.

I said, "You really need to get yourself a lawyer who knows their way around Texas nexus issues. I can't believe that generator gives you nexus in Texas. It's just one piece of equipment that has nothing to do with exploiting the Texas marketplace. It's merely being stored in Texas because that's where the dealer happens to be. I'll bet a lawyer would be able to beat this easily"

"But the auditor said..." I think I ruined his day.

Folks, please remember that the auditor is likely to be telling you stuff she learned about in a meeting back at the office. She's not a lawyer, and she has not reviewed the court cases herself. She's just trying to pry some tax revenue out of you. Never take the auditor's word for it. Get yourself a lawyer or CPA who is an expert at sales and use taxes. They'll be expensive, but they'll know a whole lot more than that sales tax auditor. And they'll be on your side.

This company threw money away in the direction of Texas because they didn't understand the way nexus worked, and they believed the auditor. Don't do it!

The Sales Tax Guy
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Wednesday, December 23, 2009

Check the Cash

In this whole series, I discuss the problem of mistakenly not charging taxes on your sales. I will continue to show you situations where the business got hammered for the sales tax when they didn't even know they were making taxable sales.

But the question that I just don't get often enough is, "How can we make sure we've addressed every sale we should be taxing?" Really, I don't get that question enough. So, even though you're not asking it, I'll give you a suggestion.

You should, annually, quarterly, monthly or on whatever cycle you feel is appropriate, analyze where your cash is coming from. Your accounting people already do this in a macro kind of way through the "cash flow" statement. But I'm talking about analyzing it from a very different, and more detailed perspective. It's not foolproof, but if you do this and can show the auditor you do this, it certainly will show you're making the effort. Which is nice.

Look at every deposit of cash to your bank account, and review the transactions that generated that cash. You need to know if it's a sale, and if it should be taxed.

This would include your normal day-to-day sales, which you should be doing anyway. Right? But it would also include any service sales, equipment transfers, non-line-of-business transactions, like the company cafeteria or occasional sales, and maybe even intercompany transactions. Anything that generated money.

The starting point is the cash that's coming into your company and where it is coming from. The odds are pretty high that any taxable sales you make will appear, at some point, as a cash receipt.

Is this a lot of work? Heck, yeah. Maybe that's why nobody asks about this. But I can see this being the perfect summer intern project. Or something for the newbie.

The Sales Tax Guy

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Quick Tip: Nexus and AP

Here's a fun way for AP to make trouble for sales and marketing people.

The Sales Tax Guy

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Friday, December 18, 2009

Flag Exemptions

In the category of nutty sales and use tax exemptions, these states impose no tax the sale of flags. In all cases there is no sales tax on the US flag. And most exempt theirs as well.

Connecticut - US and CT
Florida - US and FL
Maryland - US and MD
Massachusetts - US only
New Jersey - US and NJ
New York - US and NY
Pennsylvania - US and PA
Rhode Island - US and RI
Vermont - US flag only, and only for sales to or by nonprofit veterans organizations
Virginia - US , VA and local flags if sold by government agency
West Virginia - US and WV - regulation size only
Wisconsin - US and WI

This is an article I've been meaning to right for a while; frankly, ever since I came across this exemption for the first time. I'm guessing that the US exemptions were enacted in some fit of patriotic fervor on the part of the politicians. But the state flags? And nobody is going to vote against the law, or argue to repeal it because they would be toasted in the campaign commercials.

Imagine the youtube video, "Joe Blow, your representative, actually voted to repeal the sales tax exemption for the US Flag. What kind of American is he?? Vote for Tom Jones and he'll reinstate the exemption as soon as he takes office!"

And why give the exemption anyway? Are people buying more flags in those states because of the exemptions? If you drive through the residential areas of Milwaukee, will you see a lot of Wisconsin state flags flying proudly below all of the US flags?

Heck, I'll bet that most retailers in those states charge sales tax anyway because the sales tax software company didn't program this one - they didn't even know about it! Who would have thought?

Now, of course, they will. Because I just know they all read this blog. Sure. And Santa's coming in a few days too.

Have a nice weekend, folks.

Sales Tax Guy

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Picture note: the picture above is hosted on Flickr. If you'd like to see more, click on the picture.

Thursday, December 17, 2009

Sales Tax / Use Tax News

These are gleanings from newsletters, etc. I have not included all of the events, nor have I provided much detail. As usual, the disclaimer applies - check this kind of thing out yourself. I just want to give you a heads-up.

The District of Columbia clarified rules regarding the residential utilities exemption. Dist. of Columbia Revenue Notice 2009-11, 12/09/2009

Information was published in Florida's estimated tax program. Florida Tax Information Publication 09(A)01-07, 10/07/2009

New Jersey clarified the rules for magazines and newspapers. N.J.A.C. 18:24-1.2, effective 12/07/2009

In New York, a taxpayer was able to get a refund of hotel taxes paid, even though they had no receipts, by showing that they're contract with the vendor included the taxes. The ruling acknowledged that they had not kept adequate records. In the Matter of the Petition of Trans States Airlines, Inc., NYS Division of Tax Appeals, ALJ, Dkt. Nos. 822272; 822273, 12/03/2009

Satellite TV broadcasters in Washington have to pay use tax on the equipment provided to customers for free. The satellite fees can't be taxed under Federal law, but the equipment that is given away can be taxed. Washington Dept. of Rev., Appeals Division, Dkt. No. 08–0122R, 04/21/2009 , 28 WTD 115 (2009)

Electronic filing mandatory now in Wisconsin. Wisconsin Dept. of Rev. Sales and Use Tax Report 5-09, 12/01/2009


Amnesty Programs
Pennsylvania
New York
Massachusetts

Local rated changes
Alabama
Colorado
Florida
South Carolina
Texas
Washington

Sales Tax Guy

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Tuesday, December 15, 2009

Some Sales Tax Links for You

Rate Calculator
from Speedtax, and you'll need to register.

Do reverse audits
This short article talks about the need to audit yourself to make sure you're taking advantage of every exemption availble to you. From cbiz.com And here's another article from Avalara - Part 1 and Part 2. I particularly like the point about doing a reverse audit right after the state has audited you.

Sales and Use Tax Collection and the SSUTA
Personally, I'm not sure it's ever going to happen. But it's a worthwhile article discussing the issue.

2009 Quirky sales tax laws
A listing about some unusual recent laws...with a plug for sales tax software, of course. From Sabrix.

Sales tax in Hawaii
They have a different kind of tax and don't have the complete resale exemption the rest of the country has. And, as the article shows, it's tricky and hides the real effect from the consumer. From Yahoo and AP

The Sales Tax Buzz Top 10 Sales & Use Tax Legislative Developments of 2009
Not sure I agree with some of the commentary, but this is a good look back at 2009.

Going Green to Save Some Green
If you're looking for some exemptions that are also environmentally responsible, this is a nice summary. Most of the states have least one of these opportunities for tax savings. From Sabrix

Sales Tax Guy

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Monday, December 14, 2009

Are Your Vendors Stealing Sales Taxes?

This article from kirotv.com is long on fluff, but has a good core point to make. Are your vendors, who you're paying sales tax and/or use tax, actually remitting that money to the state?

Remember, if they're not paying over those taxes, they're ripping you off, as well as the state. You may be off the hook for the taxes (maybe not, it depends on the state*), but why should you pay that extra 8 percent or so just to line the vendor's pocket. It would be nice if that money actually went to the state, where it kinda sorta actually benefits you.

So what can you do?

The article notes that if the seller doesn't ring up the sale or give you a receipt, it's a red flag that they're not reporting the sale, or the tax. If you want to make someone miserable, and you're assertive, raise the issue right there and ask for a receipt. This would require them to ring it up, and the tax will probably get reported. Unless of course, their "cash register doesn't work right now." This really won't solve the problem unless everybody does it...which they won't. What to do? The state relies on tips from consumers - if you catch my drift.

And as I've recommended in my seminars for a long time, it's not a bad idea to ask the vendor for a copy of the permit or license they received from the state when they registered to collect sales and use taxes. It's not a guarantee they're report the income, but at least you know they're on the state's list. This is particularly important for vendors from outside the state that are charging you tax on shipments into your state. And you might want to make sure you do it for in-state vendors who you use a lot, and are kind of small or new operations.

In some states, the vendor is actually required to post their permit by the cash register. Next time you shop, try freaking out the poor clerk by actually carefully inspecting it.

But the best course, and the one your state would probably prefer, in the spirit of the season, is to tell the sheriff 'bout those law-breakin' varmints.

Sales Tax Guy

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*In some states, the buyer's liability for paying either sales tax or use tax isn't extinguished until the seller actually pays the tax to the state. Didn't know that did ya? In other states, the buyer only needs a receipt showing tax to be off the hook. But you need to check.

Friday, December 11, 2009

Second Amendment Sales Tax Holidays

I thought of this story after writing yesterday's post.

When I first read about Second Amendment sales tax holidays, it was South Carolina's. I happened to be doing a series of seminars in Tennessee that week and mentioned it in my class in Chattanooga.

(For those of you who don't know your Bill of Rights, Second Amendment sales tax holidays allow the purchase of firearms without sales tax). Read on to see why I think they exist.

South Carolina (and Louisiana) both have, in the past, scheduled them for the weekend after Thanksgiving.

Tony was in the class in Tennessee and when I mentioned the holiday, his eyes got really wide and he started squirming around in his seat.

I said, "Tony, you're thinking about taking a little road trip to South Carolina to buy yourself some guns, aren't you?"

"Heck yeah! I can save myself a ton of sales tax!"

"Now Tony, you do realize that, while you can buy those guns without tax in South Carolina, when you bring them back here to Tennessee, you're going to have to pay 9% use tax, right?" It was a sales tax seminar, so I made this a teaching experience for Tony.

His response, "Yeah. Right."

So much for even making them feel guilty!

OK, why do states have a Second Amendment sales tax holiday?

I have a couple of theories (and they are just theories):

1. As with any other sales tax holiday, it's an opportunity for South Carolina to suck business into the state for their retailers. The politicians know that the customers won't pay use tax when they return home to their own state - and they don't care.

2. It's a Second Amendment holiday, and it gives the politicians a chance to curry favor with the real men in their districts. Just kidding, if you were about to take offense.

3. These are held on the weekend after Thanksgiving. Which is often the opening of deer hunting season.

4. It's the weekend after Thanksgiving. Tony's family wants to go shopping. He might be able to justify this road trip to South Carolina by suggesting it be a shopping trip for Mom and Sis and Junior too. So, while he and Junior are shopping for guns, Mom and Sis are spending money, and paying lots of South Carolina sales tax on their purchases at the malls. Maybe South Carolina figures that they'll lose some sales tax on the gun sales, but they'll make it up on all of the other shopping that will be brought into the state that weekend. Nah, I can't believe politicians would be that devious.

As I finish this up, it occurs to me that this would be an ideal post for just before Thanksgiving. And here I am, two weeks late. But, I can see an "oldie, but goodie" post in my future for next November.

I hope you all had a good Thanksgiving and I wish you a Merry Christmas.

See you next week.

Sales Tax Guy

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Thursday, December 10, 2009

Sales Tax Holidays

Sales tax holidays are events, usually over a weekend, but sometimes longer, when some items are exempt from tax. They are usually in August (back-to-school time) and include most clothing. These August holidays often include back-to-school supplies and computers too.

There are also holidays for guns in a couple of states (SC and LA last I looked) - they're called "Second Amendment" holidays.

And there are Energy Star holidays when you can buy energy-saving appliances tax free, and hurricane sales tax holidays. One state has a sales tax holiday on just about everything!

Sales tax holidays seem to be a regional kind of thing. They're mostly in the east and southeast with only one that I can think of in the midwest, and a couple in the west.

States are getting nervous about them. Sales tax holidays are a major crunch on state budgets. And, in these times of falling sales tax revenues, they are not looked upon too kindly by your friendly elected representatives. They like to brag about the holidays, but they hate to give up the money.

And I personally wonder if they work? They're often lauded as increasing sales, but are sales increased over the entire season, or does the holiday just force more sales into a few days, forcing retailers to stock up, pay overtime, reprogram their systems, etc?

Sometimes they snag business from other states, with shoppers coming from neighboring jurisdictions for the deals. But since those shoppers have to pay use tax* when they return home, what's the point? Oh, yeah (finger snaps). The politicians who complain about out of state vendors not charging tax on shipments into their state are perfectly happy to more-or-less do the same thing to the other states. Either that, or your legislators just don't know about use tax issues (which is more likely).

You can't miss sales tax holidays. If you live in a state with a sales tax holiday and you watch the news at all, you'll know when they come up. These are just the kinds of things that reporters will cover. And they can understand it. Sort of.

*yeah, right

Sales Tax Guy

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Wednesday, December 09, 2009

Sales and Use Tax News

These are gleanings from newsletters, etc. I have not included all of the events, nor have I provided much detail. As usual, the disclaimer applies - check this kind of thing out yourself. I just want to give you a heads-up.

In Florida, indoor plant maintenance services and warranties are taxable.
Florida Tax Information Publication 09(A)-053, 10/21/2009

Tour bus receipts are taxable, even if there is some shuttling going on. But walking tours that are strictly on public property are not taxable since people can tag along for free, and there is no access to restricted areas. Florida Tax Information Publication 09(A)-054, 10/29/2009

With regard to admissions, local or state surcharges and fees, if separately stated, aren't taxable. Florida Tax Information Publication 09(A)-056, 11/05/2009

And a restaurant was still required to remit collected sales taxes, even though the employees stole the tax collections. 30-A Restaurant Group, Inc. v. Florida Dept. of Rev., FL Div. Admin. Hearings, Dkt. No. DOR 09-3-FOF, 11/20/2009

Man, those guys in Tallahassee are tough.

Wisconsin now requires that, if you buy stuff to give away with a sale, you must pay use tax on it. Wisconsin News for Tax Practitioners 12/04/2009(Items Given Away for Free - Change in Wisconsin Sales and Use Tax Treatment Effective October 1, 2009), 12/04/2009

And they have adopted the rule that says that leasing equipment with an operator who does more than set up and/or service the equipment and is necessary for equipment to perform correctly becomes a service and is no longer a rental.

Many states and news outlets are now reminding you, when you order stuff online, to pay your use taxes. Like any of my readers would forget.

Texas now provides a rate lookup tool on their web site at http://ecpa.cpa.state.tx.u/atj/addresslookup.jsp


Local rate increases

Alabama
South Dakota

Texas

Sales Tax Guy

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Friday, December 04, 2009

You're missing some tax breaks

I was chatting with a woman who bragged about finding a really big sales and use tax break for the company she worked for. What stunned her was that it was just a matter of reading the rules for her industry...the exemption was clear. She had to do a little digging - but it was right there! And her company had been handing over money for years without realizing that they didn't have to.

Not only that, but other folks in the same industry didn't know about the exemption either.

The fact that no one was using the exemption made her nervous. She contacted a sales and use tax lawyer who basically said, "Yeah, it's right there. So what's the problem?"

The moral is that you should very carefully comb the sales tax and/or use tax laws and exemptions in your states. Look for rules that could apply to you. They may be relevant to your industry. Or they might just be something that only tangentially is relevant. And they might be a little hard to tease out. But if there is a law that you can use to save money, why aren't you?

Remember, the auditor will be carefully checking that you've paid all your taxes. But she won't be telling you about the exemptions that will save you taxes. You have to do that yourself. Go crack the books and do some research.

Look! Research! Use it!

Sales Tax Guy

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Wednesday, December 02, 2009

Sales and Use Tax News

These are gleanings from newsletters, etc. I have not included all of the events, nor have I provided much detail. As usual, the disclaimer applies - check this kind of thing out yourself. I just want to give you a heads-up.

Illinois court rules freight charges were taxable. Illinois has a pretty confusing rule regarding the taxability of freight charges. The law says the shipping charge must be "separately contracted." But I've read different and conflicting illustrations.

A test that the court applied is whether or not the customer bought the item and the shipping charge in one transaction. If they did, the shipping is taxable.

Another is whether they can avoid the shipping charge in some way, either by picking it up at the store or buying it online and then separately contracting for shipping. If they can, it's an indication that the freight isn't taxable.

For example, when you buy from your average dot com, do you have any option to avoid shipping? If you don't, then, in Illinois, the shipping is taxable.

Kean v. Wal-Mart Stores, Ill. S. Ct., Dkt. No. 107771, 11/19/2009

And in Chicago, the continuing sales tax saga - the rate goes down by half a point. Suntimes.com and others

There are lots of articles floating around focusing on the loss of taxes to the states from people buying online and not paying their sales tax and/or use tax. LOTS. Here's just one of them And about 1400 more.

College privilege tax in Pittsburgh? salestaxbuzz.com

Local rate changes

Utah
Washington

Sales Tax Guy

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Tuesday, December 01, 2009

Installation Charges

This is one of a series on how to handle items that affect the "basis" of tax.

Installation charges are often included in the basis of the tax calculation...in other words, they're often taxable. Installation charges include pretty much any on-site charges related to setting up a product.

They typically don't include charges that happen at the seller's facility. Those would typically be include in the normal selling price and therefore taxable in all cases. But installation charges might be taxable or might not, depending on the state.

Short and joke-free topic today. I swear I tried. But, I mean, installation charges?

Sales Tax Guy

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