Friday, July 24, 2020

The Unspotted Issue in an Audit; Ethics and Crimes (7/24/20; 8/2/20)

In an ABA Tax Section Court Procedure Virtual meeting on Wednesday, there was a one-hour discussion of ethical issues in handling a matter in the Tax Court.  The participants in the discussion were:
• Judge L. Paige Marvel, United States Tax Court, Washington, D.C.
• Elizabeth G. Chirich, Chief, Branch 1, Procedure & Administration, IRS Office of Chief Counsel, Washington, D.C.
• Guinevere Moore, Moore Tax Law Group, LLC, Chicago, IL
• Kandyce Korotky, Covington & Burling, Washington, D.C. (Moderator)
• Mitchell I. Horowitz, Buchanan Ingersoll & Rooney P.C., Tampa, FL
The discussion was excellent.  I highly recommend those who can access the recording of the event on the ABA web site to do so.  (I would provide a link but have not yet located the link, perhaps because the recording has not yet been put up.)

During the discussion I posted two questions which, apparently because of time, the participants did not respond to.  I offer the questions and some comment here.  The questions were:
1.        Question : What if the IRS sets up only one issue in the notice of deficiency and the IRS never spotted a big issue involving omitted income. There is no real gray area in the unspotted issue; the taxpayer clearly would owe tax if the unspotted issue were fully litigated (indeed taxpayer's counsel did not think she could even make a nonfrivolous argument that the omitted income should not have been included). After filing the petition, IRS Counsel offers to concede that one issue (the spotted issue in the NOD) and sends a stipulated decision document saying that the deficiency is $0. Because the taxpayers' counsel knows that stipulation that there is no deficiency is not true, can the taxpayers' counsel sign the stipulated decision?
2.        Question: This may be a philosophical question rather than one you can answer here:  What good are ethical rules when they don't provide answers -- i.e., when different ethical lawyers acting ethically can reach different conclusions -- does that simply reward the aggressive attorney (who may even be a lawyer who charges for the benefit offered to the taxpayer by being aggressive within the ambiguities -- even creative ambiguities -- in the ethical rules) and the taxpayer engaging this ethically aggressive attorney?  And would about the more conservative ethical attorney and his client?  Is the ethically conservative attorney providing less than ethically aggressive representation then not zealously representing the client?  There is more but I'll stop there?
The second question is more philosophical, so I will focus on the first question.  Here is the key background:
1.      As I note in my Federal Tax Procedure Book, § 6211(a) defines a deficiency in part here relevant as:  “the taxpayer's correct tax liability less the amount the IRS has previously assessed.”  
2.     Decision documents in a deficiency case state either that “there is a deficiency in income tax due from petitioner” in a stated amount for a taxable year(s) or “there is no deficiency in income tax due from petitioner” for the taxable year.
The first question above asks the practitioner’s response when the practitioner knows that the decision document recitation that there is no deficiency is not correct.  The same issue would arise if the decision document stated a deficiency amount for a year(s) without considering the unspotted issue.

I have only had one case that I recall presented this issue in a draft decision document.  I caught the issue in the calculations with the draft decision document, in which I determined that the IRS calculations did not include an adjustment that we didn't contest (it was a loser for the client, which is why we didn't contest, although a significant number).  I discussed the issue with my client and the real decision maker for the client (a lawyer, one of the smartest lawyers I ever met, in business with the client).  That lawyer and, at his recommendation, the client stepped up and authorized me to discuss the issue with IRS counsel.  That was the end of the client discussion (very short, no back and forth about what to do); I raised the issue with IRS counsel; and the decision document was revised to state the correct deficiency (a substantial amount).  Fortunately, I had a good client who had good counsel (his partner) and I did not have to chase down my ethical responsibilities that would have been required had the client instructed me not to discuss the issue with IRS counsel and to sign the decision document as proffered.

I do not discuss this specific issue in my Federal Tax Procedure Book in Chapter 18 on Ethics.  I will likely revise the book to include the example in my 2020 editions that will be posted to SSRN in August 2020.  But I do discuss a similar dilemma involving a claim for refund timed to avoid the assessment statute of limitations on new assessments, thus, in the refund claim and resulting suit if necessary, to avoid the unspotted issue.
            Let me illustrate in an example.  Let's say that the taxpayer is audited and the IRS sets up a single issue that results in a notice of deficiency for $100,000.  You counsel the taxpayer that, in your best judgment as a seasoned tax litigator, you can win that issue in whichever court the taxpayer chooses to litigate it.  However, since you handled that audit, you also know that the auditing agent did not spot an even larger issue that, in your judgment, the taxpayer would lose in any court that the taxpayer chooses to litigate it.  That issue would create a tax liability larger than the dollars that would be saved on the issue that you believe the taxpayer could win.  One of the traditional gambits is to preserve the refund statute of limitations, let the assessment statute expire, and the file the claim for refund.  For example, assume that the Year 01 return was filed on April 15 of Year 02, the audit deficiency was proposed on September 1 of Year 04, your client signs a Form 870 waiver of the restrictions on assessment for Year 01 on September 5 of Year 04, the IRS assesses the tax on February 1 of Year 5, the taxpayer pays on February 10 of Year 05, and the statute of limitations on further assessment expires on April 15 of Year 5.  You will recall that, although the statute of limitations on further assessment has expired, the taxpayer still has 2 years from the date of the February 10 payment to claim a refund. So, on June 1 of Year 05, the taxpayer files a claim for refund alleging that the IRS erred on the one audit issue (the only issue the IRS knows about).  In that claim for refund, the taxpayer does not mention the issue the IRS did not audit and is not otherwise aware of, despite the fact that, in his attorney's judgment, he would lose that issue and his taxes for the year are therefore not overpaid.  Can the taxpayer lawfully sign the amended return (the claim for refund) with the jurat?  Can the attorney counsel or otherwise assist the taxpayer in filing the return?
I don’t know what other practitioners would or should do.  I can state what I would do.  I would not participate in the filing of the claim for refund and advise the taxpayer / client not to do so either.  The reasons I would marshal for the client are:  First, Section 6672 provides a 20% penalty for filing a claim for refund in an excessive amount without reasonable cause.  Second, there could be criminal penalties – perhaps tax evasion (§ 7201), perhaps tax perjury/false statement (§ 7206(1)), perhaps false, fictitious or fraudulent claim (18 USC 287).  Third, it is wrong.  (I don’t think stating this reason is inconsistent with the duty of zealous advocacy for the client.)  And those are just the risks for the client.  For the professional participating -- dare I say enabling -- the conduct there are professional ethics as well as potential criminal liability.

Now the play in the joints come if the unspotted issue is not certain to be resolved against the taxpayer if the IRS were to discover the issue and fully litigate it.  What level of confidence as to the issue is required for the taxpayer and the professional to avoid the problem?  Certainly, the taxpayer could likely avoid the criminal penalties with some level of assurance, such as perhaps reasonable basis or substantial authority or maybe just nonfrivolous position that the taxpayer could prevail if litigated.  But, what about the professional, particularly one who knows the vagaries and uncertainties in the statements of position (what really is reasonable basis of reasonable cause or nonfrivolous)?  And what if the professional is willing to permit assisting the client do something wrong to cloud his judgment as to whether the client has a defensible position on the unspotted issue?

I would appreciate anyone wanting to engage on the issues presented by these fact patterns either by comment on the blog or by email to me at

This blog is cross-posted on my Federal Tax Procedure Blog, here.

Added 7/28/20 9:30pm:

I am getting feedback/pushback from some colleagues who agree or disagree or in between with some of the comments above.  I will try to address some of the comments, and this discussion may come in several segments as I consider and try to make a meaningful comment to some of the comments I received.  So, those wanting more might check back from time to time or check the Updates for Prior Blog Postings (5/7/20; 7/17/20) in the right column, here.  I will add new comments sequentially in numerical order.

1.  One person seemed to treat the claim for refund example above as an adversary-type proceeding, suggesting that filing a claim for refund might be appropriate.  I am not convinced because, in the example, the attorney knows that the taxpayer is not entitled to a refund.  I have nothing new to offer on that.  But I posited this question to the person:  What if the attorney knows that the refund statute of limitations bars the refund -- i.e., it is an arguably meritorious claim on the merits but the statute of limitations unquestionably bars the IRS from granting the claim?  Can the taxpayer with the attorney's assistance file the claim in the hopes that the IRS will just miss the statute of limitations issue?  The person responded that yes, filing the claim for refund was appropriate.  I am not convinced.  Isn't this just another example of the audit lottery?

2.  In example #1, is it relevant that the time period to file a claim for refund is jurisdictional, so that timeliness inheres in the claim for refund in question?  I haven't dug into that issue, but it seems to me that, if timeliness is jurisdictional and inherent in the claim, then an untimely claim is inherently invalid and signing the required jurat may be improper for that reason.

3.  I turned example #1 around and asked whether the person felt the it was legal or ethical for the IRS to make an assessment (or send a predicate notice of deficiency) or take collection action when the IRS personnel knew that the assessment or collection statute of limitations had expired.  The person answered yes.  While I never worked for the IRS, but did for DOJ Tax; my gut reaction (uninformed by specific research) is that the answer is no.  There may be some remedies for a taxpayer for such improper conduct, but the question here is whether the IRS, knowing its conduct was illegal because of the statute of limitations, may legally or ethically undertake the conduct.  Note in this regard that, as I understand the statute of limitations for tax assessments, at least, it is as if the liability never existed (some statutes of limitations by contrast merely foreclose a remedy but do not wipe out the underlying liability).

Added 7/29/20 12:30pm:

4.  The ABA Court Procedure Ethics panel discussed a variation of the first example above.  The relevant part of the example setting up the discussion is chronologically as follows:

  • In pretrial work, taxpayer's counsel raises the § 6751(b) written approval issue for the accuracy related penalty and the IRS concedes.
  • The parties have a trial on the underlying tax liability.  
  • The judge encourages the parties to settle and gave an extra 30-days for post-trial briefs to see if a settlement can be reached.
  • “The parties reach an agreement in principle. IRS counsel will obtain computations and draft the decision documents and then share” with taxpayer’s counsel.  
  • “Two weeks later, Melissa [taxpayer's counsel] gets the documents from IRS counsel. The computations are much better than the numbers Melissa’s own CPA had come up with.”  Taxpayer’s counsel has taxpayer’s CPA confirm that the IRS numbers are materially wrong in favor of the taxpayer.
Taxpayer’s counsel then calls his client [actually, the taxpayer is a corporation, but the majority owner, 50.1%, seems to be the one calling the shots, but that’s another story], and “explains the situation,”  The majority owner says “you owe me a duty of confidentiality, and I am telling you not to tell the IRS counsel about that mistake. Sign it and get this over with!”

What does the counsel do, knowing that the calculations are materially incorrect?

Relevant portions of the transcript (computer generated with some errors that I have tried to correct and make more readable):
So, what is Melissa's obligation at this stage?  She knows the numbers are materially incorrect.  She knows she will be signing a document filed with the court that is materially incorrect.  And there's a possibility that that mistake is going to be cut discovered at some point in time, and how is Melissa going to explain the fact that she missed it when in fact, she didn't miss it.  She knew exactly what was going on and signed an incorrect document anyway. 
So under 3.3, 3.4, the obligation of candor to opposing counsel and to the tribunal, Melissa does have the obligation to bring this to the attention of IRS counsel first, and are not necessarily sure that I would go back and say you came up with a better number that we came up with, I would go back to IRS counsel and say I have looked at your computations.  I think there may be a mistake.  You might want to review them and make sure that you agree that this is the correct number.  You're at least then giving IRS the opportunity to recognize they made a mistake without telling them what you think that mistake is. 
If IRS comes back and says we are absolutely correct, and I have actually had that situation in computations for decision documents but in calculating how much a client was entitled to as a refund as a result of a Tax Court decision, and I couldn't get IRS to understand they had it wrong.  They were giving us too much money, they ended up giving us too much money, and no one at IRS wanted to listen to the fact that they gave us too much money. 
And I said to my client there is a possibility they will figure this out at some point in time, so don't do something stupid with the money.  But they have two years under the erroneous refund statutes who try to recover  it.  And if they don't, the statute runs out, the statute ran out and they never tried to come back and get more money. 
Budgeting she has the affirmative obligation to go back to IRS counsel and question whether the IRS computations are correct.  Elizabeth, what are your thoughts, sitting on the IRS side when this happens? 
>> Of course, you have to do that.  I think that there is this conflict here with advocacy, which is a big thing back in the when a lawyer took a case they had a duty to identify the interest of the client, at least that truth and justice would emerge.  But its kind of got away.  I think now the conflict of this representation has kind of disappeared.  There should be a more current version of that.  But I think it needs to be balanced by the other responsibilities, making candor to the tribunal.  So, I would expect her -- [unintelligible to JAT]. So, I really respected that.  I think that is what I would do if I ran the other side.  And I know that we do that certainly in the government.  I just hope that -- that is what I think, that should be reciprocal. 
>> This is Gwen.  I would just add one thing really briefly.  As much as also might want to, she cannot just call IRS counsel and tell them about this mistake without first telling her client.  She knows her client is difficult.  She knows her client is going to want her to do the wrong thing.  But she can't just turn around and call IRS counsel and tell them about it.  She has got to keep her client informed about what is going on in the litigation.  I will turn it over to Judge Marvel. 
>> I will simply point out that under this fact pattern, Melissa did nothing to generate the miscalculation if there was one.  In fact, we don't even know what set of calculations is correct.  Mitch added some facts in his comp comments by saying that Melissa went to the accountant and had the accountant check the computations.  And she knows now that the computations from the government are wrong. 
The biggest problem here that I see is the fact that  Mike, after she did what she should do and talked with Mike and explained the situation, he invokes the duty of confidentiality foreknowledge of the error.  This was presumably the result of work product and whatever information she has received from the client. 
I would like to think that Elizabeth is right, and that competent counsel will find a way to make sure that a client blesses the correction of a mistake.  But if Mike won't come around, she may have no choice but to either conclude she has an ethical obligation to reveal the error, or she has to take steps to withdraw before the document is signed.  I don't know what the right answer is, but this is a very, very interesting problem.  Again, best practices and ongoing relationships and professional reputation would seem to dictate that you treat your adversary the same way you would like to be treated. 
But I'm not sure that this goes contrary to the rules of conduct.  And that's all I have to say on the subject.
>> And that's a very good point, judge, because a lot of us look at our relationship with the IRS attorneys as a one and done.  We are going to come up against them  again.  And if they get the feeling or have evidence that we may behave in an unethical manner in case 1, they are going to treat us like that in cases 2 and 3.  But that doesn't resolve the problem as it relates to Mike, because we have the duty to Mike, as opposed to future clients who we have not been engaged with at this time.  Practice (?) what is a big dilemma for Melissa, and you would hope that Mike being a rational person, knowing that she has already gotten rid of the penalty, which could be a fairly substantial number, would recognize that he's putting her in an ethical bind and it could get her in trouble if at some point the mistake comes to light and it's brought back to the court with a motion to correct the decision.
JAT Comments: There actually is some learning on the issue the parties discuss.  Statement of Standards of Tax Practice 1999-1.  I discuss Statement 1999-1 in my Federal Tax Procedure book.  The discussion is short, so I just cut and paste it from my working draft for the 2020 edition (being published on SSRN in August 2020):
There is some authority on this subject in Statement of Standards of Tax Practice 1999-1 (“Statement 1999-1), issued by the ABA Tax Section which is not an authoritative body for the issuance of ethical standards but is nevertheless a thoughtful body.  In that Statement, one of the scenarios considered is an erroneous calculation by the appeals office, but the material facts are otherwise basically the same.  Standard 1999-1 takes the position that the attorney's knowledge of the error is a client confidence which would normally not be disclosable without the client's consent, but further takes the position that the client has impliedly consented so as to permit and even require the attorney to disclose without discussing the matter with the client.  The implied consent arises because, in authorizing the attorney to settle with the appeals officer before the number was calculated, the taxpayer already knew what bottom-line tax liability he or she was agreeing to; the authority to effectuate the settlement encompassed the correct calculation.  But what if, in authorizing the settlement, the taxpayer stated to the attorney his expectation that the tax liability would be $100,000, the IRS calculates it to be $125,000 and the attorney then calculates it to be $150,000?  Statement 1999-1 takes the position that there is no implied authority because the client's stated expectation to the attorney is inconsistent with such implied authority, and therefore the attorney cannot disclose. 
Statement 1999-1 takes a different approach for so-called “conceptual” errors that inhere in the IRS's calculations.  The example given is that the attorney and the appeals officer agree that the taxpayer is entitled to a $100,000 deduction that was originally reflected on Schedule C.  The attorney, however, believes that the deduction is attributable to a passive activity requiring that the deduction be deferred.  That issue was not addressed at appeals (remember the “unspotted issue”), and the IRS calculation treats the deduction as nonpassive giving the taxpayer a current tax savings to which the taxpayer is probably not entitled.  Statement 1999-1 treats the error as “conceptual” rather than “calculational,” thus requiring that the attorney not disclose the error without the express consent of the taxpayer.
As I understand the hypothetical addressed by the ABA panel (quoted above), the error would be computational and within the “implied” authority to advise IRS counsel.  (Note that  my anecdote above originally did not make clear that the district counsel error was calculational because that is when I discovered the unspotted item; so it was not unspotted in the audit but was when IRS counsel presented the calculations and draft decision document; I have corrected that above.)

I am not enamored of the ABA’s distinction between calculational and conceptual errors as to when a taxpayer’s counsel can forego calling a mistake to the IRS counsel’s opinion.  I do think that, in all events, the taxpayer's counsel should discuss the issue with the client to give the client the opportunity to make the right decision.  I think that, if I had what Statement 1999-1 called a conceptual error, I would have a serious discussion with my client and if the client refused me authority to settle, I would have to think carefully about whether I wanted to continue to serve that client.  But that is just me and perhaps, even, by resisting the client’s instructions not to disclose, I would violate a duty of zealous advocacy for the client.  Fortunately, except in the one example where the client authorized disclosure, I have never had to face the issue.

5.  Readers considering the litigation issue might consider Stamm Int'l Corp. v. Commissioner, 90 T.C. 315 (1988), GS here.  In that case, highly simplified (and thus risking omitting nuance), the relevant facts were:  On November 12, 1986, the parties presented to the Court a memorandum of settlement.  The memorandum stated the basis of the settlement but does not provide calculations or address the effect of § 954.  Prior to February 12, 1986, “respondent's counsel had not taken account of section 959, which, for reasons discussed below, would reduce the total amount to be paid by petitioner to approximately $1.1 or $1.25 million.”  Taxpayer’s attorneys had been aware of the correct calculation and that IRS counsel was not taking it into account.  (Although not clear from the opinion, I infer that the taxpayer's authorization to sign the settlement memorandum had assumed that correct calculations would be made but that might be an inappropriate inference.)  Taxpayer’s attorneys “had not, however, discussed section 959 with respondent's counsel or otherwise called attention to his apparent error.”  Before presenting the decision document, the IRS attempted to renegotiate the settlement agreement to correct the error.  The attempt failed (presumably taxpayer refused).  IRS counsel then filed a motion to withdraw the settlement memorandum and recalendar for trial.  The Court refused to permit the withdrawal of the settlement memorandum and presumably the case was then concluded with the decision document amount reflecting the error rather than the correction, thus substantially understating the real deficiency based on the settlement.  The guts of the Court’s analysis (such as it is) is in relevant part:

  • the mistake was not mutual; 
  • “Here, at most, we have a misleading silence by petitioner's counsel; but respondent does not argue that petitioner's counsel has an obligation to advise respondent's counsel of the provisions of the Internal Revenue Code.  Thus, at least in the context of these consolidated cases, silence is not the equivalent of a misrepresentation;” and 
  • therefore no reason to withdraw the agreement.

The Court did not have the benefit of Statement 1999-1, so it did not address the analysis in Statement 1999-1.  Interestingly, in the ABA panel’s ethics discussion, neither Stamm nor Statement 1999-1 were mentioned.  I do think that the example the panel dealt with were clearly calculational under the Statement.  Stamm may be a bit more difficult on the calculational / conceptual divide.

I did ask one practitioner citing Stamm as authority for the taxpayer’s attorney not to disclose upon instructions of the client whether, even if Stamm were still good law on how the Tax Court would resolve a similar case today, the decision to enforce the settlement agreement spoke to the ethical duties of counsel.  In other words, is what a taxpayer may be able to get away with in the Tax Court the same as an attorney’s ethical responsibilities?  The reader answered yes.  I am not comfortable with that answer, even though I know that Tax Court Rule 201(a) says “Practitioners before the Court shall carry on their practice in accordance with the letter and spirit of the Model Rules of Professional Conduct of the American Bar Association.”  I don’t read that general statement as meaning that the Tax Court is the enforcer of the Model Rules in deciding cases.  For example, if the taxpayer had some complaint that the Model Rules cover, I think it would be most unusual for the taxpayer make an ethical complaint to the Tax Court in an effort to get the attorney sanctioned or achieve some other strategic goal in the Tax Court.  (Of course, ethical rules directly affecting the integrity of the Tax Court might be enforced, but for example, a complaint that the lawyer did not communicate professionally with the taxpayer would not be enforced by the Court.)

6.  The decision document example that started of this discussion could be backed up earlier.  What if at some earlier stage, the issue of a deficiency pops up.  Take basically the same facts that the IRS has made a single adjustment resulting in an indicated deficiency of $100.  Yet, at the same time, the taxpayer and taxpayer's counsel know that there is an unspotted issue that taxpayer would certainly lose (recognizing that lawyers can usually find uncertainty to avoid the problem).  Can the taxpayer or taxpayer's counsel do anything that would indicate that the deficiency is less than it really is?  For example, sign a Form 870-AD, sign a compromise agreement based only on liability, or even file a Tax Court petition asking that the deficiency be determined to be zero.  I don't have answers, but I do have concerns.

Added 8/2/20 10:00am:

7.  Bob Rubin, here, a long time tax controversy practitioner with BoutinJones in Sacramento, made the following comment:
If one cannot sign an incorrect decision document or Form 870, how can one represent a taxpayer in an eggshell audit?  E.g., client is under audit and has skimmed significant amounts for years.  You get through the audit without coming close to making a misleading statement (for some reason the revenue agent never insisted on interviewing the client or asking whether all the income was reported) and get a Form 870 resolving substantiation issues the agent identified.  If you tell the revenue agent about the unreported income, there easily could be a criminal referral, which is what the client engaged you to avoid.  The conclusion one cannot ethically execute the Form 870 without informing the revenue agent about the unreported income really means one should not have accepted the representation in the first place.  This leads to the further conclusion that a taxpayer who has criminal tax exposure is not entitled to experienced representation in a civil audit.  What happened to the client’s right to counsel and their Fifth Amendment rights?  It seems to me the correct conclusion is that one does not make a false or misleading statement by executing the Form 870 in this situation.  This is the correct result even if there is no criminal exposure because the ethical obligations should be the same in criminal and non-criminal situations.  
Bob raises excellent concerns.  First, I think we can set aside the Form 870 or similar document (such as the Form 4549 or even Form 870-AD) that waives the restrictions on assessment without making an affirmative statement as to the quantum of a "deficiency."  The Form 870 does not say that the taxpayer or his counsel are representing that the amounts involved are a deficiency; the taxpayer is free to assert later (e.g., by refund claim or suit) that the there is some lesser or no deficiency amount.  (The taxpayer may be limited via Form 870-AD, but still there is no misrepresentation in the statement made.)  Second, other contexts in which the words chosen might be problematic, typified by a consent decision document, are the problem.  For the consent decision document I raised above, the problem is with the wording which, I think, if read literally could be a representation of the quantum of a deficiency which the statute defines as correct tax less previously assessed tax.  I suppose we could parse that specific language to infuse critical meaning into the troublesome words "a deficiency" or "no deficiency."  Is "a deficiency" the same as "the deficiency?"  Thus, a decision document saying that there is "a deficiency" could still leave open the possibility that there is some other amount of deficiency in excess of the amount quantified.  I think that is slicing the words a bit thin, but it is possible.  And it does not address the case where the consent decision document says there is "no deficiency."  I think the conventions and practices among tax controversy practitioners (both government and private) are that the consent decision document is not a representation as to the amount of the deficiency in an abstract sense but rather the amount as quantified by the parties based on the issues involved and resolved in the case.  (Note that the calculational / conceptual distinction in Statement 1999-1 is helpful in this sense.)

Now, Bob does address the larger issue of handling the eggshell audit which usually means some potential for criminal investigation and prosecution but might also mean a case where an unspotted issue could result in a material deficiency.  The solution, which Bob articulates, is to avoid in the audit or litigation even coming close to a misleading statement.  Lawyers are supposed to be masters of the language they use in representing clients in all matters, including in tax controversy matters.  It is very important to choose carefully the words used and consider the potential consequences.

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