Consulting the Tax Augurs

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Curiously reported Associated Press piece on the taxability of Ebay earnings that more or less treats the Internal Revenue Service (IRS) as some moody God whose intentions and plans cannot be divined through direct petitioning, but merely through the consultation of varied oracles of possibly dubious provenance. That is, the reporter shows no signs of actually having consulted anyone with the IRS about the question her story mulls over for nearly a thousand words. The clue, though, and probably where the story might have profitably bowed out, is right there at the end of graf two: "IRS instructions make it clear that all income—a category that includes bribes, gambling winnings, kickbacks and money made in illegal activities—can be taxed."

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  1. There are two taxes levied on any sale. One is the federal income tax on the profits, the other is the state (and local) sales tax based on the fair market value of the product sold.

    IMHO, Ebay participants should pay both those taxes in full. They should also be required to fill out the forms necessary to keep them square with the government tax collecting agencies involved. I mean the whole deal: quarterly reporting, 1099’s, districted sales tax, prepayment of estimated taxes based on last year’s revenue, etc.

    The more people who know what a major PITA it is run a business the less likely it is that the government will throw a wet blanket on your embers.

  2. I just made $25, selling a bag of weed for more than I payed. Richard, you would make my life a pain in the ass.

  3. You should pay the sales and income tax on your weed profits. You’d have to pay 15% to the feds, after business deductions. If you lived where i live you’d have to pay 8.25% of the fair market value of the weed to the state of CA.

    The state of CA does not own a computer, evidently, so you’d have to fill out a form that shows that 6% of the $25 goes to the state, 1% goes to the County, and 0.25% goes to local agencies. I’m sure you won’t mind that inconvenience.

  4. You could up owing more in sales tax than the $25 profit you thought you made.

  5. Turbo Tax now has a question, i don’t quite remember where, on taxes owed due to purchases/sales made online.

  6. Brian Doherty,

    Its right there in the Interal Revenue Code:

    ? 61. Gross income defined

    (a) General definition
    Except as otherwise provided in this subtitle, gross income means all income from whatever source derived, including (but not limited to) the following items:
    (1) Compensation for services, including fees, commissions, fringe benefits, and similar items;
    (2) Gross income derived from business;
    (3) Gains derived from dealings in property;
    (4) Interest;
    (5) Rents;
    (6) Royalties;
    (7) Dividends;
    (8) Alimony and separate maintenance payments;
    (9) Annuities;
    (10) Income from life insurance and endowment contracts;
    (11) Pensions;
    (12) Income from discharge of indebtedness;
    (13) Distributive share of partnership gross income;
    (14) Income in respect of a decedent; and
    (15) Income from an interest in an estate or trust.
    (b) Cross references
    For items specifically included in gross income, see part II (sec. 71 and following). For items specifically excluded from gross income, see part III (sec. 101 and following).

    ? 62. Adjusted gross income defined

    (a) General rule
    For purposes of this subtitle, the term ?adjusted gross income? means, in the case of an individual, gross income minus the following deductions:
    (1) Trade and business deductions
    The deductions allowed by this chapter (other than by part VII of this subchapter) which are attributable to a trade or business carried on by the taxpayer, if such trade or business does not consist of the performance of services by the taxpayer as an employee.
    (2) Certain trade and business deductions of employees
    (A) Reimbursed expenses of employees
    The deductions allowed by part VI (section 161 and following) which consist of expenses paid or incurred by the taxpayer, in connection with the performance by him of services as an employee, under a reimbursement or other expense allowance arrangement with his employer. The fact that the reimbursement may be provided by a third party shall not be determinative of whether or not the preceding sentence applies.
    (B) Certain expenses of performing artists
    The deductions allowed by section 162 which consist of expenses paid or incurred by a qualified performing artist in connection with the performances by him of services in the performing arts as an employee.
    (C) Certain expenses of officials
    The deductions allowed by section 162 which consist of expenses paid or incurred with respect to services performed by an official as an employee of a State or a political subdivision thereof in a position compensated in whole or in part on a fee basis.
    (3) Losses from sale or exchange of property
    The deductions allowed by part VI (sec. 161 and following) as losses from the sale or exchange of property.
    (4) Deductions attributable to rents and royalties
    The deductions allowed by part VI (sec. 161 and following), by section 212 (relating to expenses for production of income), and by section 611 (relating to depletion) which are attributable to property held for the production of rents or royalties.
    (5) Certain deductions of life tenants and income beneficiaries of property
    In the case of a life tenant of property, or an income beneficiary of property held in trust, or an heir, legatee, or devisee of an estate, the deduction for depreciation allowed by section 167 and the deduction allowed by section 611.
    (6) Pension, profit-sharing, and annuity plans of self-employed individuals
    In the case of an individual who is an employee within the meaning of section 401 (c)(1), the deduction allowed by section 404.
    (7) Retirement savings
    The deduction allowed by section 219 (relating to deduction of certain retirement savings).
    [(8) Repealed. Pub. L. 104?188, title I, ??1401(b)(4), Aug. 20, 1996, 110 Stat. 1788]
    (9) Penalties forfeited because of premature withdrawal of funds from time savings accounts or deposits
    The deductions allowed by section 165 for losses incurred in any transaction entered into for profit, though not connected with a trade or business, to the extent that such losses include amounts forfeited to a bank, mutual savings bank, savings and loan association, building and loan association, cooperative bank or homestead association as a penalty for premature withdrawal of funds from a time savings account, certificate of deposit, or similar class of deposit.
    (10) Alimony
    The deduction allowed by section 215.
    (11) Reforestation expenses
    The deduction allowed by section 194.
    (12) Certain required repayments of supplemental unemployment compensation benefits
    The deduction allowed by section 165 for the repayment to a trust described in paragraph (9) or (17) of section 501(c) of supplemental unemployment compensation benefits received from such trust if such repayment is required because of the receipt of trade readjustment allowances under section 231 or 232 of the Trade Act of 1974 (19 U.S.C. 2291 and 2292).
    (13) Jury duty pay remitted to employer
    Any deduction allowable under this chapter by reason of an individual remitting any portion of any jury pay to such individual?s employer in exchange for payment by the employer of compensation for the period such individual was performing jury duty. For purposes of the preceding sentence, the term ?jury pay? means any payment received by the individual for the discharge of jury duty.
    (14) Deduction for clean-fuel vehicles and certain refueling property
    The deduction allowed by section 179A.
    (15) Moving expenses
    The deduction allowed by section 217.
    (16) Archer MSAs
    The deduction allowed by section 220.
    (17) Interest on education loans
    The deduction allowed by section 221.
    (18) Higher education expenses
    The deduction allowed by section 222.
    Nothing in this section shall permit the same item to be deducted more than once.
    (b) Qualified performing artist
    (1) In general
    For purposes of subsection (a)(2)(B), the term ?qualified performing artist? means, with respect to any taxable year, any individual if?
    (A) such individual performed services in the performing arts as an employee during the taxable year for at least 2 employers,
    (B) the aggregate amount allowable as a deduction under section 162 in connection with the performance of such services exceeds 10 percent of such individual?s gross income attributable to the performance of such services, and
    (C) the adjusted gross income of such individual for the taxable year (determined without regard to subsection (a)(2)(B)) does not exceed $16,000.
    (2) Nominal employer not taken into account
    An individual shall not be treated as performing services in the performing arts as an employee for any employer during any taxable year unless the amount received by such individual from such employer for the performance of such services during the taxable year equals or exceeds $200.
    (3) Special rules for married couples
    (A) In general
    Except in the case of a husband and wife who lived apart at all times during the taxable year, if the taxpayer is married at the close of the taxable year, subsection (a)(2)(B) shall apply only if the taxpayer and his spouse file a joint return for the taxable year.
    (B) Application of paragraph (1)
    In the case of a joint return?
    (i) paragraph (1) (other than subparagraph (C) thereof) shall be applied separately with respect to each spouse, but
    (ii) paragraph (1)(C) shall be applied with respect to their combined adjusted gross income.
    (C) Determination of marital status
    For purposes of this subsection, marital status shall be determined under section 7703 (a).
    (D) Joint return
    For purposes of this subsection, the term ?joint return? means the joint return of a husband and wife made under section 6013.
    (c) Certain arrangements not treated as reimbursement arrangements
    For purposes of subsection (a)(2)(A), an arrangement shall in no event be treated as a reimbursement or other expense allowance arrangement if?
    (1) such arrangement does not require the employee to substantiate the expenses covered by the arrangement to the person providing the reimbursement, or
    (2) such arrangement provides the employee the right to retain any amount in excess of the substantiated expenses covered under the arrangement.
    The substantiation requirements of the preceding sentence shall not apply to any expense to the extent that substantiation is not required under section 274 (d) for such expense by reason of the regulations prescribed under the 2nd sentence thereof.

    ? 63. Taxable income defined

    (a) In general
    Except as provided in subsection (b), for purposes of this subtitle, the term ?taxable income? means gross income minus the deductions allowed by this chapter (other than the standard deduction).
    (b) Individuals who do not itemize their deductions
    In the case of an individual who does not elect to itemize his deductions for the taxable year, for purposes of this subtitle, the term ?taxable income? means adjusted gross income, minus?
    (1) the standard deduction, and
    (2) the deduction for personal exemptions provided in section 151.
    (c) Standard deduction
    For purposes of this subtitle?
    (1) In general
    Except as otherwise provided in this subsection, the term ?standard deduction? means the sum of?
    (A) the basic standard deduction, and
    (B) the additional standard deduction.
    (2) Basic standard deduction
    For purposes of paragraph (1), the basic standard deduction is?
    (A) $5,000 in the case of?
    (i) a joint return, or
    (ii) a surviving spouse (as defined in section 2 (a)),
    (B) $4,400 in the case of a head of household (as defined in section 2 (b)),
    (C) $3,000 in the case of an individual who is not married and who is not a surviving spouse or head of household, or
    (D) $2,500 in the case of a married individual filing a separate return.
    (3) Additional standard deduction for aged and blind
    For purposes of paragraph (1), the additional standard deduction is the sum of each additional amount to which the taxpayer is entitled under subsection (f).
    (4) Adjustments for inflation
    In the case of any taxable year beginning in a calendar year after 1988, each dollar amount contained in paragraph (2) or (5) or subsection (f) shall be increased by an amount equal to?
    (A) such dollar amount, multiplied by
    (B) the cost-of-living adjustment determined under section 1 (f)(3) for the calendar year in which the taxable year begins, by substituting for ?calendar year 1992? in subparagraph (B) thereof?
    (i) ?calendar year 1987? in the case of the dollar amounts contained in paragraph (2) or (5)(A) or subsection (f), and
    (ii) ?calendar year 1997? in the case of the dollar amount contained in paragraph (5)(B).
    (5) Limitation on basic standard deduction in the case of certain dependents
    In the case of an individual with respect to whom a deduction under section 151 is allowable to another taxpayer for a taxable year beginning in the calendar year in which the individual?s taxable year begins, the basic standard deduction applicable to such individual for such individual?s taxable year shall not exceed the greater of?
    (A) $500, or
    (B) the sum of $250 and such individual?s earned income.
    (6) Certain individuals, etc., not eligible for standard deduction
    In the case of?
    (A) a married individual filing a separate return where either spouse itemizes deductions,
    (B) a nonresident alien individual,
    (C) an individual making a return under section 443 (a)(1) for a period of less than 12 months on account of a change in his annual accounting period, or
    (D) an estate or trust, common trust fund, or partnership,
    the standard deduction shall be zero.
    (d) Itemized deductions
    For purposes of this subtitle, the term ?itemized deductions? means the deductions allowable under this chapter other than?
    (1) the deductions allowable in arriving at adjusted gross income, and
    (2) the deduction for personal exemptions provided by section 151.
    (e) Election to itemize
    (1) In general
    Unless an individual makes an election under this subsection for the taxable year, no itemized deduction shall be allowed for the taxable year. For purposes of this subtitle, the determination of whether a deduction is allowable under this chapter shall be made without regard to the preceding sentence.
    (2) Time and manner of election
    Any election under this subsection shall be made on the taxpayer?s return, and the Secretary shall prescribe the manner of signifying such election on the return.
    (3) Change of election
    Under regulations prescribed by the Secretary, a change of election with respect to itemized deductions for any taxable year may be made after the filing of the return for such year. If the spouse of the taxpayer filed a separate return for any taxable year corresponding to the taxable year of the taxpayer, the change shall not be allowed unless, in accordance with such regulations?
    (A) the spouse makes a change of election with respect to itemized deductions, for the taxable year covered in such separate return, consistent with the change of treatment sought by the taxpayer, and
    (B) the taxpayer and his spouse consent in writing to the assessment (within such period as may be agreed on with the Secretary) of any deficiency, to the extent attributable to such change of election, even though at the time of the filing of such consent the assessment of such deficiency would otherwise be prevented by the operation of any law or rule of law.
    This paragraph shall not apply if the tax liability of the taxpayer?s spouse for the taxable year corresponding to the taxable year of the taxpayer has been compromised under section 7122.
    (f) Aged or blind additional amounts
    (1) Additional amounts for the aged
    The taxpayer shall be entitled to an additional amount of $600?
    (A) for himself if he has attained age 65 before the close of his taxable year, and
    (B) for the spouse of the taxpayer if the spouse has attained age 65 before the close of the taxable year and an additional exemption is allowable to the taxpayer for such spouse under section 151 (b).
    (2) Additional amount for blind
    The taxpayer shall be entitled to an additional amount of $600?
    (A) for himself if he is blind at the close of the taxable year, and
    (B) for the spouse of the taxpayer if the spouse is blind as of the close of the taxable year and an additional exemption is allowable to the taxpayer for such spouse under section 151 (b).
    For purposes of subparagraph (B), if the spouse dies during the taxable year the determination of whether such spouse is blind shall be made as of the time of such death.
    (3) Higher amount for certain unmarried individuals
    In the case of an individual who is not married and is not a surviving spouse, paragraphs (1) and (2) shall be applied by substituting ?$750? for ?$600?.
    (4) Blindness defined
    For purposes of this subsection, an individual is blind only if his central visual acuity does not exceed 20/200 in the better eye with correcting lenses, or if his visual acuity is greater than 20/200 but is accompanied by a limitation in the fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees.
    (g) Marital status
    For purposes of this section, marital status shall be determined under section 7703.

  7. Your mother should know!
    ***

    One, two, three, four…
    Hrmm!
    One, two, (one, two, three, four!)

    Let me tell you how it will be;
    There’s one for you, nineteen for me.
    ‘Cause I?m the taxman,
    Yeah, I?m the taxman.

    Should five per cent appear too small,
    Be thankful I don’t take it all.
    ‘Cause I?m the taxman,
    Yeah, I?m the taxman.

    (if you drive a car, car;) – I?ll tax the street;
    (if you try to sit, sit;) – I?ll tax your seat;
    (if you get too cold, cold;) – I?ll tax the heat;
    (if you take a walk, walk;) – I’ll tax your feet.

    Taxman!

    ‘Cause I?m the taxman,
    Yeah, I?m the taxman.

    Don’t ask me what I want it for, (ah-ah, mister Wilson)
    If you don’t want to pay some more. (ah-ah, mister heath)
    ‘Cause I?m the taxman,
    Yeah, I?m the taxman.

    Now my advice for those who die, (taxman)
    Declare the pennies on your eyes. (taxman)
    ‘Cause I?m the taxman,
    Yeah, I?m the taxman.

    And you’re working for no one but me.

    Taxman!

  8. Gary-

    Thanks for that concise summary of the tax laws! I’m sure that the original is actually much longer 😉

  9. thoreau,

    I took tax law. Everyone should have to suffer as I did. 🙂

  10. Gary, come whine to me about suffering after you’ve studied the renormalization group without the benefit of a formal class on field theory.

  11. thoreau,

    Motherfucker, like I had any background in tax law?

  12. Everybody has to pay taxes. Even businessmen that rob and steal and cheat from people everyday, even they have to pay taxes.

  13. Thoreau,

    Physics, however complicated, has a rational epistomology, tax regulations do not.

  14. Drooling Richard,

    The IRC is chock full of crap, inconsistenties, directly contrary provisions, etc.

  15. [That is, the reporter shows no signs of actually having consulted anyone with the IRS about the question her story mulls over for nearly a thousand words.]

    Given the annual tax-season stories on what percentage of IRS-helpline-provided answers are wrong, I think the reporter’s justified.

  16. I do wish PayPal & eBay (the same company now, right?) would provide a simple way to print out a 1099 or whatever so you could see your sales and take that form to the tax prep. moron and say, “This is non-employee compensation” or whatever and just let the dummy type in the number and move on. Instead, every year I get stuff like, “Oh, so this is money off the Internet? How does that work? I have AOL. Do you have AOL?”

    /should really do my own taxes, but they’ve been very complicated for the last few years

  17. The reporter seems completely confused. At one point she’s talking about 9 factors to tell if someone is running a business or not. That’s wholly irrelevant to whether taxes are owed. It is relevant to whether the profits will be treated as capital or ordinary though.

  18. Gary,

    I am not to sure what you’re saying. To me, anyway.

  19. should really do my own taxes, but they’ve been very complicated for the last few years

    Isn’t there some law or statute that states government taxation forms and regulations must be clear and understandable to the common layman? I thought there was some law of clarity or something like that. Isn’t there?

    ….maybe that’s just a hallucination caused by my delerium tremens…

    I’d hope so, cause I don’t know WTF Gary was just talking about above. I don’t understand! And don’t even bother trying to simplify it for me(again).

  20. Drooling Richard,

    IRC = Internal Revenue Code

  21. so, like…can trainwreck write off his grow lamp fees?

  22. Smacky,
    Even if there were such a rule, it would be impossible to make tax forms comprehensible to the common man because the law is just too complicated. There is stuff like what you’re talking about in the paperwork reduction act and an executive order the says that everything has to be in plain english. It’s not that strong though.

  23. smacky,

    Yes, the law states that. However, what tends to happen is that so much is required to be said that one gets buried in the details. This sort of scheme has been created in areas like credit card and banking account applications as well.

  24. People pay billions (collectively) in taxes they could go forgo because they are unaware of the tax laws and the individual savings aren’t generally enough to spend the effort researching the law (since the learning curve can be rather steep).

  25. Well, I guess I’m fucked then. My attention span is simply not that big! That explains why I will never have a credit card, or a mortgage, or a life.

    La la la

    -Signing out (from the poorest city in the Nation),

  26. Gary,

    Yes, I know what IRC stood for.

    You missed my point: Why should Ebay participants be immune from the same taxes and regulations as a business?

    The rational answer to that question is neither group should be subject to these regulations.

  27. Drooling Richard,

    Well, the IRC takes a very broad view of what is income. *shrug*

  28. The States are worse than the Feds in this regard. The Feds want 15% of your non-deductable income. The State of CA, where Ebay resides, wants 6%-plus of your net profit (non-deductable) based on the fair market value of the products sold.

    Scroll back up to top of this thread (if you care). I made two mistakes that I want to correct. First I wrote that the weed seller would have to pay about 8.25% of the $25 in weed he sold, in LA County, for example. Wrong! He has to pay sales tax on the fair market value of weed he sold, not just the profit. The fair market value is anything the state wants it to be.

    My 8.25% enumeration of the sales tax components does not add up. I was looking at nearby Ventura County’s sales tax, where I reside. LA county puts another 1% on that.

  29. Former tax guy here. Here are the rules:

    1. If you sell something for more than you pay for it, that’s a taxable capital gain… UNLESS…

    2. You are in the business of selling that item, then your markup (less expenses) is ordinary taxable income. (e.g. a 7-11 selling candy bars above cost)

    3. If your are in the business of selling your stuff, but your expenses exceed your revenues, you can deduct your net loss… UNLESS…

    4. Your business is just a hobby. You can’t deduct hobby losses (i.e. you can’t permanently take deductions on a business that will never be profitable.)

    5. IN ADDITION… Many states charge sales tax on used stuff, even if you paid sales tax before. E-Bayers are generally subject to sales tax for in-state sales… BUT…

    6. If the buyer is out-of-state, and the seller does not have “nexus” (ie., no connection to that state except mailing goods there)… Then the seller doesn’t have an obligation to collect sales taxes… BUT…

    7. The buyer is subject to USE TAXES that exactly equal what the sales tax should have been. (note: If you cross a border to do tax-free shopping, you owe your home state use tax on whatever you bring home. Hence, lots of New Yorkers are breaking tax laws by shopping in NJ and not sending a tax check to Albany.)

    That pretty much sums up the technical facts of the Ebay situation. The only open question is how aggressively the IRS plans to enforce laws that have been on the books for more than a decade.

    Last thing… These laws are NOT a matter of IRS policy. The tax laws were passed by congress and state legislatures. The IRS merely chooses how to enforce the laws. (Sure, they pass regulations to clarify some tax laws when Congress tells them to. But the laws in play here are very black and white.)

    Best,

    Steve

  30. Goog point on the Use Tax. The fact is every state that collects a sales tax also has a use tax. For example I live in MD but along the DE border. If I buy something in DE ( I am more likely to buy it online though since most things I buy are cheaper, free 2 day shipping, 0 sales tax,etc)Technically i am supposed to send William Donald Shaffer a check every quarter for the Use Tax for out of state goods. But i dont and in fact everyone I know buys things in Delware and No One pays the tax. I think its hard to enforce a law with 0% compliance and 0% awareness.

    Also in MD, possessing 1 pack of cigarettes without a MD tax stamp is a felony worse than crack possession.

  31. Why should eBay-ers pay all that tax? Another tax guy here. (I’m not a lawyer, but I play one at work!)

    First, most states exempt casual sales from the sales tax. So like, keep it casual, dude.

    Next, federal and state income taxes are based upon income, not sales. Sure the winning bid was $200, but I had expenses. Maybe I bought it for $400 years ago? Maybe I had storage costs over the years. I can get that $200 gross down to zero net without much imagination.

    Also, eBay has no way of telling if the sale ever happened. They are simply a marketplace; neither buyer nor seller. Prove I got the $200.

    The idea that everyone should pay their fair share of tax went out the window when we had a budget surplus, one that Bush 46 said “belongs to the ‘Merican people” and then he and Congress argued over whether to return to us 9% or 11% of what belongs to us. I guess the other 89-91% belongs to Congress?

    No, what we need is a tax revolt. The former soviet union disintegrated when it could no longer finance itself. No shots fired, just an underground economy starving the government from its fix.

    Remember, our government is just one paycheck away from disintegration.

  32. So Steve, if all I’ve ever sold is crap from around my apartment, always at less than I paid, i’m okay? The only times I sell stuff on eBay is when I upgrade, or old video games/dvds that I no longer have any interest in, to offset the cost of the new item.

    Who does a buyer pay Use Taxes to? their own state, or the state of the seller. I always get a headache thinking about taxes.

  33. Uh, for income to be taxable it has to come from a taxable source. i.e. the Federal government needs jurisdiction.

    If you look at 26 USC ? 861(b)and the related 26 CFR ? 1.861-8(f)(1)(i)) you can find out if your income is from a taxable source. i.e. is gross income for tax purposes.

    For most citizens of the various states your income is not taxable because the Federal gov doesn’t have jurisdiction.

    Reason covered some of this a while back.

    I also deal in more detail on the issue here.

    Or you might want to look at here and here.

  34. A nice understandable history of the income tax laws in America can be found here.

    It comes with a nice chart showing how the written rules evolved.

    What has been done over time is the renumbering of the sections to make it harder to figure out what is going on.

  35. So Steve, if all I’ve ever sold is crap from around my apartment, always at less than I paid, i’m okay?

    Probably. If you haven’t depreciated it or expensed it, you’re probably fine for federal income tax purposes. But you do have to substantiate what you paid for it all.

    If all your stuff burned in a fire, you’d get to claim a partial “casualty loss” deduction. The government does recognize that your stuff has value as an asset, and you don’t recognize income exchanging cash for hard assets, or hard assets for cash as long as you paid income tax when you first accumulated the cash to buy the hard assets.

    The only times I sell stuff on eBay is when I upgrade, or old video games/dvds that I no longer have any interest in, to offset the cost of the new item.

    You should be fine.

    Who does a buyer pay Use Taxes to?

    Buyer’s domicile. Buyer does not have a responsibility to send a sales/use tax check to a state to which he’s never been.

    I always get a headache thinking about taxes.

    Yeah, but chicks dig it.

  36. Note: I’m NOT a lawyer.

    This is NOT legal advice. I’m just some half-assed blogger that did SALT consulting in a Big 5 firm back when there were 5. I could be wrong. (I don’t think so, but I could be wrong about thinking I’m not wrong.)

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