FBAR Civil Willful Penalty Collection Suit for $17+ Million with Damning Allegations (5/17/21)

Some FBAR willful penalty collection suits are relatively bare bones, asserting only the essentials.  In United States v. Gaynor, (M.D. Fla. Dkt.  2:21-cv-00382 Dkt # 1 Complaint 5/14/21), CL here, the Government goes beyond the essentials with a detailed recounting of damning facts (see pars. 13-92).

The Complaint breaks down the damning facts in the following categories:

A. Decedent inherited her late husband's Swiss bank account

B. Decedent repeatedly met with Swiss bankers

C. Decedent moved her assets to other Swiss banks to avoid tax compliance

D. Decedent hid the offshore accounts from her CPA

E. Decedent failed to file timely FBARs

F. Decedent belatedly made a “quiet disclosure”

G. Decedent attempted to deceive the IRS during its audit

JAT Comments:

1. One allegation that I found interesting is:

90. In a June 2018 filing with the IRS, Decedent asserted through her attorney that she “knew nothing about Gery or its foreign bank accounts” until 2012. She contended, with emphasis in the original, that her “lack of knowledge” was both “obvious and easily provable.”

Since she made the allegation through her attorney, perhaps it was necessary to say it was through the attorney.  On the other hand, on the facts pled in the earlier paragraphs she certainly knew the allegation was false and, if she knew, why didn't the attorney know.  Of course, sometimes clients do not tell their attorneys the truth, with the result that the attorney can make false representations.  It is interesting in this regard that the complaint does allege that the decedent kept the truth about the foreign accounts from her CPA (see par. D, above).  No such allegation is made about the decedent keeping the truth from the attorney.  Perhaps that is because the IRS or DOJ Tax did not try to go beyond the attorney client privilege.

FBAR Collection Suit Settled Before Jury Verdict Announced (8/27/19)

I previously reported on pretrial skirmishing in the Government's FBAR collection suit in United States v. Dadurian (S.D. Fla. 9:18-cv-81276).  See Court Denies Motion for Partial Summary Judgment on FBAR Willful Penalties (Federal Tax Crimes Blog 8/16/19), here, and Two New FBAR Opinions -- Nothing New Here (Federal Tax Crimes Blog 6/27/19), here.  I report here on the conclusion of the case.

The case went to trial and was submitted to the jury.  Before the verdict was announced, however, the parties settled the case, where the Government originally sought judgment for $2.7 million, for $1 million.  (However, see below as to how the settlement will be effected.) Apparently, there was some drama involved because the jury reached a verdict before the settlement was finally reached, so the parties had to choose to complete the settlement or accept the jury verdict (then unknown, although reached).  See FBAR Trial Settles With Recklessness Standard, TNT (8/29/19) (with the estimable Lee A. Sheppard contributing to the article).  I do not have a link to the article because it is behind a paywall, and getting Tax Analysts' permission to post is a nuisance, as well as (in my experience) requiring some wait period before posting.  Those with a TNT subscription should just go look at it there, although the important details are no different than I offer here drawn solely from the court documents I retrieved from Court Listener (which everyone can access free here).

The jury verdict held Dadurian liable for the accounts she had caused to be set up, but as noted the jury verdict does not control.  I have not attempted to determine the amount of the liability based on the jury verdict, but it was substantially less than the $2.7 million the Government claimed.

Here are the relevant documents from Court Listener:

• The Stipulation Regarding Settlement, here.
• The Jury Verdict (Mooted by the Settlement), here.

JAT Comments:

1.  Nothing particularly unusual here except, of course, the drama in having to choose between the settlement and the unknown jury verdict.

2.  The Stipulation Regarding Settlement is, I think, somewhat noteworthy as to how the settlement gets effected.  Here is the relevant part:  “The material terms of the settlement are as follows: Dadurian will stipulate to a judgment in the full amount of the penalties, plus interest accruing under 31 U.S.C. § 3717. The United States will agree to mark the judgment satisfied if Dadurian pays the United States $1,000,000.00 within 90 days of today.” So, there will be a judgment indicating Dadurian's liability for the full amount and then the judgment liability will be settled for $1 million.  (I guess this sentence is redundant, but that seems a strange way to effect a settlement; it seems to me the more straightforward way to settle would be to enter judgment in the amount of the settlement; if anyone knows why the settlement was structured in this way, please make a comment or email me at jack@tjtaxlaw.com.

Addendum 8/27/19 2:45pm:

3.  With regard to Comment #2, Bob Steinberg, an attorney-CPA, in Palmetto Bay Fl., asks whether this settlement format will give rise to cancellation of indebtedness income.  I think I can argue that both ways (if I had to).  Still, I would presume that somebody addressed that issue in reaching the settlement.  However, I would appreciate any analysis of that issue that readers may make either by comment or by email jack@tjtaxlaw.com.

Outstanding Powerpoint Presentation on All Things FBAR Penalties (Procopio #1) (11/5/18)

I post a Powerpoint Presentation (in pdf format), here, that was offered at the 14th Annual University Of San Diego School Of Law Procopio International Tax Institute last week.  The panel was titled "Summer of Norman, Wahdan [sic Wadhan], Colliot:Defending Title 31 FBAR penalties: Pre and Post-Assessment, IRS & DOJ Policies and Strategy," and the panelists were

• Caroline D. Ciraolo, of Kostelanetz & Fink, here.
• Robert S. Horwitz of Hochman Salkin Toscher & Perez PC, here.
• Patrick W. Martin of Procopio, et al., here

This is really a great current discussion on all facets of FBARS, including

• FBAR penalties, 
• FBAR penalty assessments, 
• the Offshore Voluntary Disclosure programs, 
• FBAR Audits and Litigation (including Government collection suits and FBAR penalty refund suits), 
• FBAR willfulness and reasonable cause, 
• FBAR administrative collection
• And more.

When getting permission to post this, I did engage in discussing with the authors one issue related to pp. 32&33 of the PowerPoint.  The FBAR penalty refund suit as stand alone litigation is a trial to the judge; no jury trial is available.  The FBAR penalty collection suit can be tried to a jury.  Now, as tax lawyers are familiar, subject to the Flora full payment rule in much tax litigation, when the taxpayer files a proper tax refund suit after not paying the full amount (perhaps for other events or years), the Government will counterclaim for the unpaid balance.  For example, in TFRP cases, the putative responsible person can make partial payment and the Government will counterclaim.  The counterclaim is a collection suit in response to the refund suit.  Applying those concepts to the FBAR context (although outside Title 26), in theory the FBAR penalty refund case should be decided by the judge, and the counterclaim / collection case could be tried to a jury if either side demanded a jury.  That is an odd situation and at least offers the theoretical possibility, if not mitigated somehow, that the judge could reach a decision on the refund case that is inconsistent with the jury verdict on the counterclaim / collection case.  I say it is theoretical, because I think it would be unlikely for practical reasons.  Still:

Data Table and Statistics on FBAR Penalty Civil Litigation (5/19/18)

I provide here an excel spreadsheet titled FBAR Civil Litigation Spreadsheet.  As noted in the sources worksheet, I think the source for the raw data is DOJ Tax.  That raw data is in the worksheet titled Data.  I put that raw data into Excel's Table format so that it can be sorted, sliced and diced.  I also created the Statistics worksheet to derive statistics from the data table.  If anyone has corrections, updates or comments, please let me know at jack@tjtaxlaw.com.

There are some limitations to the spreadsheet

District Court Holds Government FBAR Willful Penalty Burden of Proof is Preponderance and Recklessness is Willfulness for FBAR Willful Penalty (4/5/18)

In United States v. Garrity, 2018 U.S. Dist. LEXIS 56888 (D. Conn. 2018), here, a Government suit to reduce the willful FBAR penalty to judgment, the Court held:

1.  The Government's burden of proof on the willful penalty is preponderance of the evidence.

2.  "T]he Government may prove the element of willfulness in this case with evidence that Mr. Garrity, Sr. acted recklessly."

The opinion is relatively short and straight-forward, so I refer readers to the opinion.

This case has a lot of commotion in it, so readers with particular interest might want to review the docket entries which as of today are here.  I make some comments about it below.

JAT Comments:

1.  As I have often noted, I do not believe that the preponderance of the evidence standard should apply because I think the case is sufficiently like the civil fraud penalty that the same burden should apply.  The court dismisses the civil fraud penalty analog in footnote 3 as follows:

   n3 In light of the presumption in favor of applying the preponderance standard in all civil actions, the few structural similarities that Defendants point out between the civil FBAR statute and the civil tax fraud statute are not sufficient to warrant applying a higher standard of proof. (See ECF No. 106 at 2-3.) It is also worth noting that the Second and Eighth Circuits have applied the preponderance of the evidence standard to the tax statute imposing civil penalties for aiding and abetting tax underpayments, i.e., 26 U.S.C. § 6701. See Barr v. United States, 67 F.3d 469 (2d Cir. 1995); Mattingly v. United States, 924 F.2d 785 (8th Cir. 1991). In doing so, the Mattingly decision, on which the Barr decision relied, suggested that the clear and convincing evidence standard is limited to civil tax fraud cases brought under 26 U.S.C. § 7454(a), which requires proof of "fraud with intent to evade tax." 26 U.S.C § 7454(a); Mattingly, 924 F.2d at 787 ("[A]bsent fraud with the intent to evade tax pursuant to § 7454(a), a preponderance standard is applicable in civil tax cases.").

I should note that the reliance on § 7454(a) is misplaced.  Section 7454 relates to Tax Court proceedings - i.e., it is under subchapter C titled "Tax Court."  That statute does not govern income tax proceedings in other courts where the Government must prove fraud by clear and convincing evidence.  Moreover, the Court's curt analysis does not address the issue that the the civil fraud penalty, like the FBAR civil willful penalty, bears the same structural relationship to the criminal fraud penalty, which is like the FBAR criminal penalty.  Both are civil counterparts to criminal fraud penalties.  To simply say that they are different penalties does not really address the issue.  Still, there is a lot of contrary authority at this stage so getting courts to hold otherwise may be almost impossible.

Court Dismisses Fraudulent Transfer Claims for FBAR Willful Penalty For Failure to State Claims with Particularity But Grants Leave to Amend (10/5/2017)

In United States v. Park, 2017 U.S. Dist. LEXIS 165173 (N.D. Ill. 10/5/17), here, the Government sued to collect an FBAR willful penalty (erroneously called a tax penalty) assessed against a taxpayer, deceased, and joined the taxpayer's family members on various transferee liability provisions.  The Court granted the children's motion to dismiss for failure to lead the cause of actions properly, but granted the Government leave to file an amended complaint resolving the deficiencies.  For context, the original complaint is here.

The Government's claims against the children were under the Illinois Uniform Fraudulent Transfer Act ("IUFTA"), 740 ILCS 160/5.  The children asserted that, because that claim sounds in fraud, the Government was required to assert the elements with particularity under FRCP 9(b).  The court discussed the elements and judicial interpretations and then concluded:

The government has not come close to describing with particularity the precise circumstances of the alleged transfers in the way that these decisions have required. The complaint contains no particularized description of the events surrounding the conveyance of Mr. Park's assets or the Trust to the Park children; in fact, it makes no particularized allegations of any such conveyance or conveyances at all. Particularized facts concerning "what (or how much) was transferred, when the transfer was made, how it was made, who made it, who received it, and under what circumstances," are largely missing; the government only pleads who received the alleged transfers (the Park children). The government has not met its pleading burden under Rule 9(b) on Counts V and VI.

The Court also rejected the Government's claims that, as to Illinois common law for tracing asset transfers, the more liberal Rule 8 pleading standard applied and was met.  The Court rejected the claim.

Finally, for additional flavor, readers should review the complaint which I link above.

The Court did give the Government leave to amend to correct the deficiencies if it can.

JAT Comment:  There was an issue floating around at one time as to whether the FBAR penalty was the type that abated upon the penalized party's death.  I suppose that issue, to the extent that it is still alive, might be presented in the case.  I did research that issue at one time and concluded that it was a long shot at best.

Government FBAR Suit Amended Complaint Survives Motion to Dismiss (10/7/17)

In United States v. Pomerantz, 2017 U.S. Dist. LEXIS 165488 (W.D. Wash. 10/5/17), here, the court denied Pomerantz's motion to dismiss in this FBAR willful penalty civil action.  I previously reported on the court's granting in part of a prior motion to dismiss.  See Court Dismisses Government Complaint for FBAR Willful Penalty with Leave to Amend for Failure to Allege Facts Supporting Willfulness (Federal Tax Crimes Blog 6/12/17; 6/26/17), here.  The Government amended the complaint and in this latest order, it survives the motion to dismiss.

Readers can review the order for the details, but basically the Government made relatively minor amendments which were sufficient to satisfy the pleading requirements.

The Court also denied Pomerantz's motion to strike the Amended Complaint references to the prior Tax Court case.  The Court quotes the references as follows:

In case number 25058-15 before the United States Tax Court, Pomerantz stipulated to entry of a decision including a tax deficiency and civil fraud penalty under 26 USC § 6663 with respect to his [2007-2009] United States income tax liability. 

Both the deficiency and the fraud penalty for the [2007-2009] tax year[s] to which Pomerantz stipulated in the United States Tax Court case were based at least in part on income generated by and/or income deposited into the foreign accounts identified in paragraph 21, above, that were not disclosed on Pomerantz' [2007-2009] income tax return[s].

JAT Comment:  I have no substantive comment since the holding is straightforward and routine.  The merits will be fought out later.  The indication is that Pomerantz is proceeding pro se.

Court Dismisses Government Complaint for FBAR Willful Penalty with Leave to Amend for Failure to Allege Facts Supporting Willfulness (6/12/17; 6/26/17)

UPDATE 6/26/17:  On 6/23/17, DOJ Tax filed an amended complaint, here.  I have not studied the complaint in detail, but my quick review suggests that it does address the judge's concerns or confusions.  Note particularly that civil tax cases for the years involved were resolved with the taxpayer agreeing to the civil fraud penalty with the base including, in part, earnings on the offshore accounts.  While this may not be preclusive on the issue of FBAR willfulness, it is certainly not neutral.

We have this unusual order dismissing the Government case seeking to reduce the FBAR assessment to judgment in United States v. Pomerantz (6/8/17 WD WA 2:16cv00689), here.  The Complaint in the case is here; the docket entries as of today are here.  The judge dismissed with leave to amend because the Government failed to plead facts from which a fair inference could be drawn that the defendant acted willfully in failing to file the FBAR.  The Court also denied Pomerantz' motion to dismiss for improper venue and his motion to transfer the case to the District of Columbia.  The latter holdings are unexceptional.  However, under the notice pleading environment, it would be the rare case that would be dismissed for failure to state a claim, so I will just provide excerpts from the opinion on that issue.

The FBAR willful penalty requires, well, willfulness.  If the Government wants a judgment for the willful penalty, the Government must allege and prove that the defendant acted willfully.  The Government did allege willfulness but ---

[I]n order to state a claim to reduce a civil penalty to a judgment, the Government must allege sufficient facts to support a reasonable inference that (1) the government assessed a civil penalty, and (2) the penalty was valid. To adequately allege that the penalty was valid, the Government must allege facts supporting each element of the underlying penalty. 

* * * *  

The Government alleges that Mr. Pomerantz’s failure to timely file FBAR Forms “was willful within the meaning of 31 U.S.C. § 5321(a)(5),” implying that Mr. Pomerantz had either constructive or actual knowledge of the reporting duty. (Id. ¶¶ 23, 37, 45.) However, these allegations are precisely the “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements” that are insufficient to state a claim. Iqbal, 556 U.S. 662, 678, (2009) (citing Twombly, 550 U.S. at 555). They do not plausibly support the inference that Mr. Pomerantz knew of the reporting duty. Instead, the Government must allege sufficient facts to plausibly support the inference that Mr. Pomerantz knew—actually or  constructively—of the reporting requirement. United States v. Williams, 489 F. App’x 655, 659 (4th Cir. 2012). 

i. Actual Knowledge 

Actual knowledge of the duty to report may be inferred from a course of conduct that demonstrates a conscious attempt to conceal the failure to report. See United States v. Sturman, 951 F.2d 1466, 1476 (6th Cir. 1991) (citing Spies v. United States, 317 U.S. 492, 499 (1943)). The Government alleges that the company Mr. Pomerantz used to open the Swiss accounts—Chafford Limited—“conducted no active business, but was a shell entity used to hold and manage [Mr.] Pomerantz’ personal investments.” (Compl. ¶¶ 6-7.) 

Similar allegations, combined with the taxpayer’s failure to pursue knowledge of further reporting requirements, sufficiently supported a finding of “willfulness” in Sturman. See 951 F.2d at 1476-77. The court can plausibly infer an intent to evade the foreign bank account reporting requirement based on the creation of foreign bank accounts in the name of a shell company. See id. Thus, with regard to the Chafford Limited Accounts, the Government has adequately pleaded facts supporting the inference that Mr. Pomerantz knew of his duty to report. 

However, Mr. Pomerantz opened the CIBC Accounts in his own name. (Compl. ¶ 5.) The accounts were opened prior to January 1, 2001, well before the allegedly “duplicitous” actions occurred. (Id.) The Government makes no allegations that Mr. Pomerantz took steps to conceal or mislead sources of income by opening the CIBC Accounts, and since the accounts were created well before the allegedly “duplicitous” actions occurred, the court cannot infer a confiscatory intent with regard to the CIBC Accounts. (See id.) The court declines to infer from Mr. Pomerantz’s creation of the Chafford Limited Accounts knowledge of the duty to file FBAR Forms for the CIBC Accounts. The Government has not provided the court with any authority in which a court inferred from obfuscating conduct with no connection to a particular account an intent to evade a reporting obligation for that account, and the court finds such an inference implausible. (See generally Resp.) Thus, with regard to the CIBC Accounts, the Government makes only speculative and conclusory allegations regarding Mr. Pomerantz’s actual knowledge. 

ii. Constructive Knowledge 

Knowledge of the duty to report may be actual or constructive. Williams, 489 F. App’x at 659. Taxpayers who are willfully ignorant of the reporting requirement are treated as if they knew of the requirement, under the theory of constructive knowledge. Id. The Government alleges that Mr. Pomerantz “failed to report income deposited into, and/or received from, the foreign accounts.” (Compl. ¶¶ 22, 36, 44.) The Government argues that the court can reasonably infer from this allegation that Mr. Pomerantz was willfully ignorant of the FBAR reporting obligation. (Resp. at 4.) 

However, the cases the Government cites in support of this argument have found “willful ignorance” of the FBAR reporting duty because the government showed that the taxpayer was on inquiry notice of the duty due to specific language on a Schedule B tax form, which directs filers to the FBAR filing instructions and requirements. See
Williams, 2010 WL 3473311, at *4 (imputing knowledge of the FBAR reporting requirement to a taxpayer who completed a Schedule B form); McBride, 908 F. Supp. 2d
at 1197-98 (same); Sturman, 951 F.2d at 1476 (imputing knowledge of the FBAR reporting requirement to a taxpayer who was “aware of” the Schedule B form’s contents). 

Here, in contrast, the Government does not allege that Mr. Pomerantz filled out a Schedule B Form or was otherwise aware of its contents and instructions regarding the FBAR reporting requirement. (See generally Compl.) Nor has the Government alleged any other basis to infer willful ignorance. (Id.) Accordingly, the court cannot reasonably infer that Mr. Pomerantz was willfully ignorant of the FBAR duty to report. 

Based on the foregoing analysis, the court concludes that the Government fails to sufficiently plead that any failure of the duty to report with regard to the CIBC Accounts was willful. The court cannot disaggregate the amount of the penalty that resulted from the failure to report the CIBC accounts from the failure to report the Chafford Limited Accounts. Because the CIBC Accounts were part of the basis for levying each of the penalties that the Government seeks to reduce to judgment, the court accordingly dismisses the entire complaint as to all three penalties. (Compl. ¶¶ 24, 46, 48.)

JAT Comments:

Zwerner Rises to Defense Against Multiple FBAR Penalties (9/28/13)

Readers will recall that, in an unexpected development, Treasury assessed and DOJ Tax sued to collect the 50% FBAR penalty against Carl Zwerner for four years.  Up to that point, based on the information publicly available (principally from offshore account plea convictions), Treasury had only assessed a single FBAR of 50% for the highest year.  Thus, it was of considerable interest -- and angst -- to taxpayers and practitioners that Treasury would assert 4 years of FBAR penalties.  I discuss this in my prior blog on the filing of the case.  U.S. Civil Suit for 4 Years of Willful Penalty of 50% Per Year (Federal Tax Crimes Blog 6/14/13), here.

Zwerner has filed his answer, here, which states his side of the story, albeit in summary fashion.

Some key points from the answer:

1.  At the key time  of his reputed voluntary disclosure in 2008, Zwerner was represented by "a tax attorney, Dennis Kleinfeld, of the then reputable law firm Rothstein Rosenfeldt & Adler, P.A. (“RRA”)."  Notice the words "then reputable."  See Wikipedia entry on Scott W. Rothstein here, and paragraph 5 of the compliant quoted below.  Mr. Kleinfield's current law firm bio is here.  I understand that Mr. Kleinfeld referred Zwerner to Mark Nurik who represented Zwerner before the IRS.

2.  Here is a key allegation in the answer (pp. 3 and 4):

4. On February 10, 2009, the RRA lawyers met with IRS Criminal Investigation Division (“CID”) to go over the voluntary disclosure. On February 17, 2009, IRS CID issued a letter stating that no criminal action would take place, but the identity of the client had not been disclosed at the February 10, 2009 meeting. Nurik then advised Zwerner that his voluntary disclosure had occurred and he should file the amended returns for tax years 2004 – 2006. As instructed by his lawyers in March 2009, Zwerner immediately filed the amended tax returns and the FBARs for 2004, 2005, and 2006, and paid the tax and interest owing. 

As narrated, Zwerner's prior tax counsel did not complete the voluntary disclosure by identifying Zwerner to CI and making a full disclousure.  Instead, he told Zwerner to do a quiet disclosure by filing amended returns.  The implication and allegation is that Zwerner had no reason to question whether his tax counsel was giving good advice and that Zwerner reasonably believed and took affirmative objective steps to implement a voluntary disclosure.

U.S. Civil Suit for 4 Years of Willful Penalty of 50% Per Year (6/14/13)

In United States v. Zwerner (SD FL No. 13-cv-22082-CMA), the IRS is suing to obtain judgment on an FBAR willful penalty assessment for 4 years.  The civil Complaint is here.  Here is a cut and paste of paragraph 18:

18. Due to Zwerner’s willful failure to file FBARs reporting his financial interest in the Swiss bank account during 2004-2007, a delegate of the Secretary of the Treasury of the United States assessed penalties against him under 31 U.S.C. § 5321(a)(5) in the amount of 50% of the balance of his account at the time of the violations for each year, as follows:
(a) 2004 – $723,762, assessed on June 21, 2011.
(b) 2005 – $745,209, assessed on August 10, 2011.
(c) 2006 – $772,838, assessed on August 10, 2011.
(d) 2007 – $845,527 assessed on August 10, 2011.

Many practitioners, myself included, have operated on the assumption that the worst FBAR violation cases would draw a civil penalty not exceeding the 50% high year, which is the penalty required in the criminal cases that have been prosecuted and convicted.  Indeed, I have heard even one prominent Government official say that the delta between the then 25% OVDI in lieu of penalty and the "worst case" FBAR penalty was 25% (on similar reason would be 22 1/2% based on the 27 1/2% in lieu of penalty).

And, my mea culpa, I was just this week ragging on an IRS manager about the worst case scenario the agent provided upon our request incident to considering opt out.  The computation sent by the agent was the 50% per year for six years (the civil statute of limitations).  While speaking with the manager on another issue, I kicked in on this issue by noting that providing that information of a risk of a 6-year 50% penalty was absolutely useless information since there was no possibility that the IRS would assert that multi-year penalty and indeed, from a practical perspective, the max would be 50% high year.  I argued that she should pass on to the powers that be that the IRS should not be promulgating useless, theoretical only information and that, if they provided any information, perhaps it could be something like that, in practice, they have not asserted more than 50%.  Even the latter limited information -- if true -- would be useful to taxpayers considering opt out because they could then bracket their situations with known cases of the 50% penalty -- i.e., in simplified analysis, I am only 50% as bad (no entities, etc.) as that 50% penalized case, so my worst willful case would be 25% (the same as the OVDI in  lieu of penalty), with a possibility of less on opt out.  (This is rough and ready and needs to be fine-tuned, but that type of analysis should be taken on opt out if we can determine the high end of the spectrum.)

At any rate, here is the civil suit that the IRS may exceed a single year willful penalty -- and not just exceed but substantially exceed -- ratcheting up to 4 years.  On a static amount that should be reported on the FBAR (say $1,000,000 per year for six years), the maximum theoretical penalty would be $3,000,000, or 300%.