back to article UK taxman told to chill out 'cos loan charge is whacking tax dodgers and whoopsies alike

HMRC was today slammed for failing to distinguish between genuine tax avoidance and innocent mistakes when wielding "broad, disproportionate powers" like the retrospective loan charges devastating some tech freelancers. In a damning report, the House of Lords Economic Affairs Committee said the taxman wasn't treating people …

  1. Brian Morrison
    Mushroom

    Genuine tax avoidance?

    You mean the thing that's actually legal, as opposed to tax evasion which isn't?

    1. Roland6 Silver badge

      Re: Genuine tax avoidance?

      Suspect the author was:

      <multi-choice>

      1. Having problems succinctly articulating the problem for example:

      Disguised remuneration schemes are an example of unacceptable tax avoidance that HMRC is right to pursue.

      ie. schemes that use the legal tax avoidance cloak to achieve something not originally envisaged.

      2> Didn't get as far as reading para 2 on page 3 of the report:

      However, the Government’s approach does not appear to discriminate effectively between the full range of behaviours and circumstances it describes as tax avoidance. There is a clear difference in culpability, for example, between deliberate and contrived tax avoidance by sophisticated, high-income individuals, and uninformed or naive decisions by unrepresented taxpayers.

      3. The opening paragraph was edited with too much zeal to give it a little too much punch; but then there are some who think tax avoidance - including HMRC sanctioned schemes such as tax-exempt savings (ie. ISA's) and tax breaks on pension contributions, should be illegal...

    2. Anonymous Coward
      Anonymous Coward

      Re: Genuine tax avoidance?

      Indeed, the distinction between tax planning and tax evasion is deliberately, self-servingly ignored by the HMRC. They are deliberately conflating the two in order to prop up their case for an unlawfully retroactive tax grab.

      Meanwhile, those in charge of HMRC are telling their minions to go easy on the big multinationals with expertise at tax planning because they have personal vested interests:

      https://www.thetimes.co.uk/article/tax-official-admits-treasury-told-us-to-give-amazon-an-easy-ride-over-vat-gq0p0v5jj

    3. Anonymous Coward
      Anonymous Coward

      Re: Genuine tax avoidance?

      Perhaps there should be a third option?

      "Can't understand the fecking rules. Did my best."

      1. Anonymous Coward
        Anonymous Coward

        Re: Genuine tax avoidance?

        Anybody who receives money in the form of a "loan" which they have no intention of either repaying or paying interest on, is surely aware that this is a ploy to avoid tax.

        Presumably the idea is to defer it for a very, very long time - e.g. until they die. Hotblack Desiato would have been proud.

  2. Dwarf Silver badge

    Bbbbut. Because you should have purchased that new car last year, we’ll charge you for the tax component anyhow.

    Got to raise that tax income somehow.

  3. Will 28

    Also recommended

    "The government should withdraw clauses 79 and 80 of the Finance Bill, which would extend HMRC time limits to assess offshore matters to 12 years"

    Presumably because this also "disproportionately affect unrepresented and lower income taxpayers".

  4. Mark 85 Silver badge

    So, I'm sure that all of Parliament is upfront and honest about paying all the tax they owe? Looking at the US Congress and government where I am, I suspect more than a few are diving into legal loopholes that they created for themselves. One law (or interpretation) for them and another for everyone else.

  5. Teiwaz Silver badge

    'Whoopsies'

    Isn't that a stage term?

    Seems like just another UK government tactic to further increase the wealth disparity in the country through cack-handedness.

    Prevent tax evasion ??? I can only assume to end up with this total mess, their hearts were not in it by a long shot.

  6. DavCrav Silver badge

    Who exactly on lower income is being forced to use EBTs. as insinuated in the article? The only people I've ever heard using them are footballers, those hard-working salt of the earth lads in permanent penury.

    From what I can gather, this part of the Finance Bill is a long-overdue attempt to close a loophole in tax law where you can borrow money from your company and never pay it back, essentially earning tax free. Then the company is wound up, the loan is written off, and you never pay a penny in tax. Well, as of April 2019, these people get stuck with the full bill unless they repay the loan.

    I, to be honest, couldn't give a monkey's about the pain such people will receive.

    1. The Nazz Silver badge

      also Christa Ackroyd

      Not only footballers but many television "personalities" or "talent" may be involved. If CA is to believed, and i don't see why not, her employer, the BBC DEMANDED that she start up such a scheme.

      Around the time that Glasgow Rangers got into severe financial difficulties , the BBC also reported that their own investigations revealed that of 54,000 people they "remunerate" some 24,000 of them were on such schemes.

      Tbh, the article doesn't say what "the loan charge" is and how it adversely and retrospectively affects those involved. It would've helped me had it said so, or a link.

      Edit : I too have little sympathy for people caught out by this, they made a choice to maximise their own income. Which has backfired.

      Very similar to those who took on endowment mortgages, many bragging that they'll "make" £200,000 profit/windfall when it matures and yet now want the taxpayer to pick up the shortfalls that are appearing/will soon appear.

      Like fuck they would've shared their gains with ordinary taxpayers.

      1. Richard 12 Silver badge

        And care workers, supply teachers, couriers...

        Yes, you heard right.

        A lot of minimum-wage and zero-hours workers have been forced into these and similar arrangements so their employer can avoid/evade national insurance and similar.

        HMRC then go after the poor sods on minimum wage, instead of the employer who created the arrangement. One assumes this is because a minimum wage earner probably can't afford a tax accountant or lawyer to argue on their behalf.

        1. DavCrav Silver badge

          Re: And care workers, supply teachers, couriers...

          "And care workers, supply teachers, couriers...

          Yes, you heard right.

          A lot of minimum-wage and zero-hours workers have been forced into these and similar arrangements so their employer can avoid/evade national insurance and similar."

          You see, when I do Google searches for employee benefit trust and courier/teacher, I find no examples. I'd like to see an actual, named example of such a thing. Until then it doesn't exist as far as I'm concerned.

          And at any rate, HMRC says they are going after the company at first instance, and then if the company folds it's pushed onto successors and then the employees. So sounds like supply teachers that I can't find any evidence exist are off the hook, unless the school doesn't exist any more.

          1. Richard 12 Silver badge

            Re: And care workers, supply teachers, couriers...

            The House of Lords used a care worker as one of their case studies!

            https://www.bbc.co.uk/news/business-46431167

            Not exactly hard to find.

            Temps don't get contracted directly.

            Schools don't employ supply teachers and Councils don't employ temp careworkers. They contract agencies.

            Agencies then insist that their employees work under "umbrella" companies. The umbrellas have no assets, so instantly fold when HMRC investigates.

            And bingo!

        2. LucreLout Silver badge

          Re: And care workers, supply teachers, couriers...

          A lot of minimum-wage and zero-hours workers have been forced into these and similar arrangements so their employer can avoid/evade national insurance and similar.

          No they haven't. EBTs cost money to run. Granted, not enough money to indicate competence, but money nonetheless.

          Minimum wage isn't worth avoiding tax on. Some companies using a lot of gig economy staff may insist people incorporate, but that isn't to slim down on NI contributions, it's to avoid an employer-employee relationship in which employment rights exist.

      2. BrownishMonstr

        Re: also Christa Ackroyd

        I'm pretty sure everyone will try to maximise their income. Some will do it legally, others illegally. The problem is when the employers say there's nothing immorral about it. Minimum wage workers are no doubt more desperate.

        1. Anonymous Coward
          Anonymous Coward

          Re: also Christa Ackroyd

          "Minimum wage workers are no doubt more desperate."

          And probably less well financially educated and able to see that it's a scam.

        2. LucreLout Silver badge

          Re: also Christa Ackroyd

          I'm pretty sure everyone will try to maximise their income. Some will do it legally, others illegally. The problem is when the employers say there's nothing immorral about it.

          Tax has a legal component to it, but never a moral one. Your moral framework is different to mine and mine is different to the next blokes. So it goes. Thus there can never be a moral component to tax.

          Tax gets spent on things one person may fundamentally diagree with, that another person may strongly support - nulcear weapons or the NHS spring to mind. It can't be immoral to avoid giving money for something you have moral objections against. Thus, there is no moral component to tax - only what is legally due is legally due - the art is to know where the line between avoidance and evasion lies.

      3. katrinab Silver badge
        Flame

        Re: also Christa Ackroyd

        How the loan charge works:

        You have to either repay the loan, because, you know, normally if you borrow money and don't pay it back, you get big burly debt collectors with baseball bats at the door demanding immediate repayment. Or, if you are not going to repay it, you pay tax on it.

        They told HMRC at the time that it was a loan, ie one of these things that you have to pay back, so on that basis, HMRC didn't charge tax on it. If they have no intention of repaying it, and the "lender" has no intention of sending debt collectors in to enforce repayment; then it is not a loan.

        1. Nunyabiznes
          Joke

          Re: also Christa Ackroyd

          It was a loan repaid with hours of their lives. Fair enough?

    2. Anonymous Coward
      Anonymous Coward

      "Who exactly on lower income is being forced to use EBTs. as insinuated in the article? The only people I've ever heard using them are footballers, those hard-working salt of the earth lads in permanent penury."

      There was a bit on the radio a year or so ago about supply teachers, cleaners, and the like being forced to use that kind of arrangement. From what they were saying, the repercussions weren't fully explained, and it was a case of "oh, it's a standard thing, everyone does it, just sign it".

    3. NeverMindTheBullocks

      @DavCrav

      Maybe try reading the report. In particular the selection of witness statements here. Inclusing a Locum social worker and jobbing IT freelancers. We are not talking about high net worth individuals or celebrities.

      https://publications.parliament.uk/pa/ld201719/ldselect/ldeconaf/242/24217.htm#_idTextAnchor122

      You have also completely misunderstood the legislation. These were employment agencies signing up workers and paying them through these schemes, not the workers own companies, assuring them that HMRC are aware of them and that they had been approved by legal experts.

      HMRC have been aware of these schemes for over a decade and they had been declared under the HMRC DOTAS process. HMRC chose not to do anything about them. They are now not chasing the scheme providers, but the individuals who were signed up to them, many of them unaware of the arrangements or accepting the claims of the scheme providers.

      This is no different to the Govt. deciding to raise income tax by a penny, backdating it 10 years and then demanding that everyone pay the extra tax, despite the fact that thay had paid everything they were supposed to at the time and charging interest and penalties on top. With no means of appeal.

      1. Dr. Mouse Silver badge

        Re: @DavCrav

        Yes, low paid workers were forced into these schemes by their employers. On top of this, senior legal professionals advised that they were legitimate and legal, so many of those who weren't forced into them thought that they were a safe and legal way to minimise their tax burden.

        In fact, AFAIK, they WERE legal at the time. Whether they were moral or ethical is another matter, but if something was legal when it was done it should not retrospectively changed. What if the government decided that the national speed limit on motorways should be changed to 50mph, and every motorist who had done more than that over the last 10+ years should be done for speeding?

        So, the main points here should be that:

        a) Those who were forced onto these schemes with no understanding should not be targeted, and

        b) Laws should not be made retrospective, they should apply only from the point they come into force.

        1. DavCrav Silver badge

          Re: @DavCrav

          "On top of this, senior legal professionals advised that they were legitimate and legal, so many of those who weren't forced into them thought that they were a safe and legal way to minimise their tax burden."

          HMRC have said they weren't for at least the last eight years. (That was the first link I clicked on that found legislation tackling these schemes in 2010.) They were obviously at least a bit dodgy. Nobody can seriously, with a straight face, think that paying more or less no tax on earnings was fully legit. I mean, be reasonable here.

          You people who think closing the EBT loophole is terrible of HMRC need to sort yourselves out. Did some people get defrauded by their tax advisors and employers? Yes. The people you should be angry with is them, not government.

          This just proves that the far-right no tax bullshitters were lying all along. "We pay no tax, we think it's legal, government should change the law if they want us to pay tax." Government changes law, at latest 2010. "Think of the children!!1! Oh, and the teachers and social workers!"

          1. Dr. Mouse Silver badge

            Re: @DavCrav

            That was the first link I clicked on that found legislation tackling these schemes in 2010

            Well, in that case, go back to 2010 when dealing with this. However, HMRC are going a loooong way further than this (I've heard of people being pursued for taxes going back to the early 2000s), and going after the individuals while taking no action against the providers of the schemes, the advisors, the QCs who said they were all above board etc (which many continued to do even after 2010).

      2. DavCrav Silver badge

        Re: @DavCrav

        "HMRC have been aware of these schemes for over a decade and they had been declared under the HMRC DOTAS process. HMRC chose not to do anything about them. They are now not chasing the scheme providers, but the individuals who were signed up to them, many of them unaware of the arrangements or accepting the claims of the scheme providers."

        Bollocks. EBTs were the subject of loophole legislation since at least 2010. It's just that the legal rulings and multiple appeals have taken this long. So HMRC have been saying 'this is tax fraud' for at least eight years of that decade. Now there are legal judgments that say 'yes, it is tax fraud'. Pay up.

        1. LucreLout Silver badge

          Re: @DavCrav

          Bollocks. EBTs were the subject of loophole legislation since at least 2010. It's just that the legal rulings and multiple appeals have taken this long. So HMRC have been saying 'this is tax fraud' for at least eight years of that decade. Now there are legal judgments that say 'yes, it is tax fraud'. Pay up.

          DavCrav and I agree on little, most especially when it comes to matters of tax. I'm perfectly peachy with tax avoidance (not evasion), whereas I suspect DavCrav is less at the "all is well" end of the spectrum of avoidance. However, on this we actually agree. These schemes, no matter who used them, were transaprently obviously about evading tax and those now caught should rightly be paying the bill and the penalties.

          No IT contractor should be hiding behind the sick and the lame on this one. Get out front and centre and accept that you tried to evade tax and got caught. Man up, as the phrase goes. You're not some minimum wage imbecile who didn't know what they were signing, you were well aware and perfectly capable of finding out, that these schemes were not avoiding anything, they were evading it.

          Again, no legitimate tax pro would have been pushing an EBT for someone whose primary income derived fromt he UK while they were ordinarily resident here. Footballers & movie stars who make image rights internationally etc, yes, maybe. But not someone working a normal job.

  7. Doctor Syntax Silver badge

    Standard tax gatherers' approach since the (Red) Dawn of Time: go for those least able to afford professional defence and demand an arm and leg.

  8. Time Waster

    Payday loans

    If you accept payment by your employer as non-taxable loans, whilst I’m trying to remain open-minded, I’m struggling to summon much sympathy. I’d actually be very interested to know what happens in such an arrangement were the employer to become insolvent. I would imagine when the liquidators spotted those “loans”, the tax man would be the least of your worries!

    1. Velv Silver badge
      Boffin

      Re: Payday loans

      In many cases the loans were made from offshore unconnected entities so were afforded protection from the liquidators in the event of insolvency. A truly well connived scheme to avoid legitimate reasons to pay back the loan.

      A good example is the Rangers case - when the club became insolvent and Duff & Phelps were appointed as administrators, in theory they should have been recovering all the loans, yet they were unable. The very loans that should have been the tax HMRC was trying to recover when they forced the club into administration.

  9. Happy_Jack

    Avoidance?

    Where both parties conspire to disguise payments as loans, with a secret agreement that they aren't really loans and will never be repaid, then surely that's just tax evasion?

    Avoidance is not doing the thing that would create the tax liability in the first place. People earning less than the basic income tax threshold are avoiding income tax. People who earn far more but pretend they don't are evading tax.

  10. derfer

    This nothing new by HMRC

    A couple of years ago I received a letter from the tax man stating I owed him around £5,500 for previous underpayment and had three weeks to pay up. As the letter didn't give any details as to where the underpayment came from, and as I've only ever worked PAYE I was a touch confused.

    I rang them up and, after 90 minutes on hold before I spoke to someone, they confirmed 'the letter was an error and shouldn't have of been sent - sorry'.

    I asked for another letter confirming the first was in error and they said no.

    1. Emperor Zarg

      Re: This nothing new by HMRC

      I have had this twice.

      The first time I was a PAYE employee with straightforward tax affairs. The demand was for a preposterous five-figure sum, payable immediately.

      The chap I spoke to at HMRC was incredibly belligerent and simply said I owed them money (I didn't) because the computer said so and I should pay up, or else. He wasn't joking. I wasn't paying anything I didn't owe. I dug my heels in and said that if they could demonstrate how they had arrived at the figure and it was valid, I would gladly pay it, otherwise they could go whistle for it. They couldn't, it got ugly and protracted but eventually, after several unannounced home visits, which scared the daylights out of my wife, they conceded that I didn't owe anything at all. I never got any kind of apology from them and consider that what they were attempting was simply extortion.

      The second time, the amount was a less scary but not insignificant 4-figure sum. I spoke to a very helpful lady at HMRC, who, after a few days of investigation admitted it was an error. Having been through this once before, I demanded and received a letter confirming same.

      Having mentioned the above to numerous friends and colleagues, several of them received similar letters. Most paid up without question.

  11. Kevin Johnston Silver badge

    The ever accurate tax man

    Even now, years after it was confirmed in various court cases, I cannot get over that if you ask HMRC how to complete a form and it turns out to be wrong it is your fault and you have to pay any penalties they decide on????

  12. Velv Silver badge
    Headmaster

    Schemes

    Here's a clue. If your employer, accountant or adviser tells you they have a "scheme" to help you avoid tax, it's probably against the spirit of the law.

    I'm all for people minimising their legitimate tax liability, however while "schemes" may be legal they often bend the interpretation of the letter of the law beyond what is reasonable and legitimate.

    We all have our own morale compass, this country's in enough shit already without giving HMRC more excuses to fuck over the masses. Don't use #Schemes :)

  13. Anonymous Coward
    Anonymous Coward

    Rather than bolting on another few clauses to the 17000+ page UK tax manual just simplify it beyond all recognition. Close every loophole by there not being any possible means to interpret the terms in other than the way they were intended. No more than one side of A4 for personal tax another side of A4 for business tax. No small print at all, make it at least 16 point text and preferably larger. Above all write it in terms that anyone aged 10 years or more can fully understand. It also should also eliminate at a stroke the possibility of anyone formerly employed from HMRC acting to facilitate tax evasion. Anyone 'unemployed' as a result of such legislation should be made to dig tunnels and cuttings for HS2 on a minimum wage, either that or starve. What do you call a tax inspector with typhoid wallowing in mud? A bloody good start.

    1. PhilDin

      It can't be done, you can get the basics into a single sentence, for example (roughly based on Irish figures), 0% on the first €18,000, 20% on the next €20,000 and 40% on the remainder. Easy!

      Except what if I get a loan from my own company, does that count as income (Revenue: yes it does, let's write that down somewhere). What if I get a car from my company (Revenue: yes it does, better write that down somewhere). What if I get €5,000 in one year and €50,000 the following year, can I average that out (no, better write that down so). Do travel expenses count as income? (Revenue: maybe, it depends, better write that down somewhere).

      You get the picture, you end up with a very simple rule for calculating your tax liability (tax is easy) with loads of rules regarding what does and does not qualify as income (law is hard).

      1. Brewster's Angle Grinder Silver badge

        Actually, you can average your income provided you're a farmer or an author of copyrighted works (yes, including software devs).

    2. 96percentchimp

      This is a perfect example of the sort of simplistic, fatuous, rabble-rousing populism that has led us to the brink of Brexit. Yes, taxation could be more simple, but it can't be THAT simple.

      Or as Ben Goldacre likes to say about medicine: "I think you'll find it's more complicated than that."

  14. ScottishYorkshireMan

    Yet no one bothers about government ministers and MP's

    They get a property, usually a pretty pricey one, paid for by the state, no indication whether HMRC sees it as BIK or not. Yet they are allowed to 'flip' these properties and pocket the proceeds. Again no indication of whether the HMRC get's it flesh. Same with Osbornes trip to the World Cup, at Googles behest. Was this a BIK? Yet, Google then get a sweetheart tax deal.

    Yet, the honest joe trying to keep his family out of the foodbank, gets crushed.

    Yet through all this its all about people paying tax. No one ever mentions those that spend that tax on pish poor schemes that perhaps benefit them when they are no longer politicians with directorships, but no real benefit to the taxpayer. So, do you feel for all the tax you pay, this government or any government for that matter, gives good value?

  15. webberg

    I have joined the Register just this morning. I will declare an interest in that firstly, I'm a tax professional working in the area of contractors and in particular the long running enquiries into the use of "schemes". It could therefore be said, correctly, that I have a commercial interest. Please bear this in mind. Secondly, I gave evidence to the Lords for the Report we now see.

    The key point - for me - is that many of my clients were wither pushed into a scheme by an agent or end client (no scheme = no job) and all of those parties benefited from its use but are not be pursued by HMRC. Why not?

    Trying to define evasion (criminal) from avoidance (legal) is relatively easy. Trying to sort avoidance into shades of grey, is not.

    Clearly, some clients knew exactly what they were doing. Equally clearly many did not.

    The report however says HMRC - in possession of all the data, did nothing until about 5 years ago and that is (in their Lordships' eyes) an abuse of the powers they called for, were granted and now apparently are not enough.

    1. Aristotles slow and dimwitted horse Silver badge

      Because...

      Because in all instances where your post poses a question, the answer that HMRC would give is "la la la, we don't want to hear you". HMRC see themselves as unchallengeable, and are utterly arrogant, aggressive and hypocritical in their role. It's easier for them to say that "as an individual, you are responsible for your own tax affairs" because it's easier for them to intimidate and threaten individuals rather than organisations - who have a tendency to bite back.

      Fortunately, more and more individuals are now biting back, and biting HMRC hard, in a very public manner. They don't like this at all. Hence the additional scrutiny from the Lords as overall they are not morally fit and proper to execute AND mark their own homework.

    2. DavCrav Silver badge

      "The report however says HMRC - in possession of all the data, did nothing until about 5 years ago and that is (in their Lordships' eyes) an abuse of the powers they called for, were granted and now apparently are not enough."

      So, you at least agree that everyone engaging in EBTs since 2012 (six, not five years ago when the first tribunal said HMRC are right) is a fraudster. OK, we'll start from there, but I'm glad to know you are admitting that if you have advised anyone on an EBT since 2012 then you are abetting a criminal offence.

  16. Nematode

    "failing to distinguish between genuine tax avoidance and innocent mistakes". Er, what about folk genuinely in business on their own account and whose employment status for employment rights are "non-employed" when the tax man decides "employed for tax purposes".

  17. LucreLout Silver badge

    You get what you pay for....

    others who felt they had been incorrectly caught in the net of tax rules, such as IR35, thought they might be a legitimate way of paying the right amount to the taxman.

    No they didn't. Literally only an idiot could possibly have consider that these tax evasion schemes were a legitimate way of paying the right amount of tax. The whole advertising premise of them was to avoid paying tax and how much tax you could save. Anyone claiming they thought it a legitimate way to pay the right amount of tax is too stupid to be in charge of their own financial affairs and must be made a ward of court.

    These include things like an Employee Benefits Trust – which is used by businesses to receive a tax deduction and pay funds were paid to employees as non-taxable loans.

    Anyone using an EBT to evade tax should rightly expect a stiff penalty and back taxes applied to the start of the trust. These were transparently obviously designed to evade tax rather than avoid it. The whole idea was to change taxable income into non-taxable income. Anyone claiming ignorance of this cannot be rightly considered to be in full charge of their mental faculties, or a fit and proper person to manage their own finances.

    He emphasised the UK tax collector should tackle tax evasion and aggressive tax avoidance

    That is what they are doing in this instance.

    I'll be the first to admit the tax avoidance industry doesn't have a great reputation - some dislike it morally, others because there's too many cowboys slinging evasion schemes such as those detailed in the article. There isn't a single tax-pro would credible claim they didn't expect some, most, or all of the EBT schemes to get called in, and given Gordon Brown introduced the retrospective tax legislation when he was chancellor, few who can claim they were unaware of it or its intended use.

    I dislike most taxes and consider the tax burden far too high for a productive economy (you can't tax your way into prosperity), however, tax evasion is illegal, and in terms of reducing the tax burden, unneccessary. People caught in these schemes were allowing greed to trump reason, and they have been caught. I'm sorry to say that I have no sympathy. Tax arbitrage isn't intended for retail, you need to involve expensive international components if you're going to do it properly (legally and so you don't get back taxed later). Avoiding taxes ordinarily incurs a loss rate of up to 10% plus fees, if you want a simple structure that keeps the fees low. Anything promising near 100% returns is obviously dodgy.

    I work in the field, so I'm no lefty "all property is theft" type, but seriously, anyone claiming they thought this was avoidance not evasion is living in a fantasy land.

    1. Roland6 Silver badge

      Re: You get what you pay for....

      >but seriously, anyone claiming they thought this was avoidance not evasion is living in a fantasy land.

      Particularly as HMRC did a clean out of the investment industry in the late 1980's/early 1990's where part of the tax free 'investment' was a loan back...

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