- 1 Cryptocurrency Tax Lawyer
- 2 Cryptocurrency Tax 101
- 3 Do I Pay Tax When I Purchase Cryptocurrency?
- 4 The Purchase Date and Value of Cryptocurrency is Important
- 5 What Happens When You Sell Cryptocurrency?
- 6 Example of a Cryptocurrency Sale and Tax
- 7 Short-Term vs. Long-Term Capital Gains example
- 8 Income Tax
- 9 Exchanging Cryptocurrency
- 10 You Received Cryptocurrency as a Gift
- 11 You Received Cryptocurrency as an Inheritance (Step-up)
- 12 1031 and Cryptocurrency
- 13 Inventory
- 14 Avoiding Tax
- 15 Reporting Foreign Bitcoin/Cryptocurrency
- 16 FBAR /FinCEN 114
- 17 Do You have to report foreign held cryptocurrency?
- 18 FBAR Rules are Contradictory
- 19 Remember the Purpose of Foreign Reporting
- 20 Are you out of Compliance?
- 21 IRS Offshore Reporting & Tax Amnesty Programs
- 22 IRS Offshore “Potential” Penalty List
- 23 How to Find Experienced & Reputable Offshore Voluntary Disclosure Counsel
- 24 Golding & Golding – Board Certified in Tax Law
Bitcoin Tax Lawyer – IRS International Bitcoin Tax Attorney
Cryptocurrency enforcement by the IRS is on the rise and our International Cryptocurrency Tax Lawyers are here to help. Specifically, cryptocurrency reporting and tax compliance have become key IRS enforcement priorities, which can be reflected in the following recent chain of events:
– Introduction of various new Tax Enforcement Groups
– U.S. joining the global enforcement team of J-5 to enforce Offshore Tax and Cryptocurrency in particular
– Soon-to-be extinct OVDP (Offshore Voluntary Disclosure Program), and
– Coinbase Subpoena being approved by the Courts
Cryptocurrency Tax Lawyer
,At Golding & Golding we focus exclusively on International Tax, Offshore Disclosure and Foreign Asset, Investment, Account and Income Reporting. We represent clients worldwide with cryptocurrency related tax issues including:
- Reporting Cryptocurrency on an FBAR
- Disclosing Offshore Cryptocurrency on International Informational Returns
- Cryptocurrency PFIC Reporting
- Cryptocurrency Income Tax
- Cryptocurrency Capital Gain Tax
Offshore Disclosure Attorney – International Tax Lawyer, Sean M. Golding (Board Certified Tax Law Specialist) Offshore Cryptocurrency Tax Lawyer & Bitcoin Tax Attorney (2018) (Golding & Golding)
Cryptocurrency Tax 101
The foundation for the rules and regulations involving cryptocurrency are still being laid, but the following is a summary of the basics involving how cryptocurrency should be taxed and may be recorded.
Here are some of the basics:
Do I Pay Tax When I Purchase Cryptocurrency?
No. cryptocurrency is considered property. When a person purchases property they do not pay tax because the purchase price of property is not a taxable event.
For example, last week you purchased a home for $300,000. You are not taxed on the purchase of the home, because it is not a taxable event.
The Purchase Date and Value of Cryptocurrency is Important
The date you purchased cryptocurrency (and fees you paid), will typically form the basis of your “property” and is a very important value. This is called your “basis.”
That is because at a later date, when you sell or exchange the cryptocurrency, the basis will serve as the purchase/acquisition price — and will help determine what taxes you a may owe to the IRS
What Happens When You Sell Cryptocurrency?
When you sell cryptocurrency, you have engaged in a taxable event. At the most basic level, you purchased something previously, and now you want to sell the property – hopefully for profit, which is considered Capital Gain (excluding inventory).
Example of a Cryptocurrency Sale and Tax
David purchased $25,000 of Bitcoin on January 1, 2017, and sold it on December 15, 2017 for $30,000. In other words, David purchased something for $25,000, and then sold it for $30,000 – he made $5000, and the IRS wants to tax David on his $5,000 profit.
Here’s how it works:
Short-Term Capital Gain
Since David purchased and sold Bitcoin in the same year, he held the cryptocurrency for less than a 12-months and it is considered a short-term capital gain.
A short-term capital gain is taxed at the same tax rate as regular income. Therefore, there is no special tax credit or treatment for short-term sales of a property (exclusions, exemptions, and limitations permitting)
Long-Term Capital Gain
Referring to the same example from above, instead of selling the Bitcoin on December 15, 2017, he sold it on February 8, 2018. This changes the nature of the cryptocurrency sale. That is because more than 12-months has passed since David purchased the Bitcoin.
Therefore, David’s sale will be considered a long-term capital gain. The reason why this is important, is because long-term capital gain receives beneficial tax treatment.
Long-term capital gains has a preferred tax rate. The tax rate for long-term capital gains is 15% unless a person falls into the top tax bracket, in which the tax rate jumps to 20%.
**Long-term capital gains rules change constantly, so it’s important to keep up with the rules in the year you sold it.
Short-Term vs. Long-Term Capital Gains example
Michelle and David each earn $800,000 a year and are both in the top tax bracket. If David and Michelle each purchased cryptocurrency for $30,000 and each sold it for $100,000, here is how the different situations tax situations will play out:
David’s Short Term Gain
David would have a $70,000 dollars again, that will be taxed as ordinary income tax rate, and his net effective tax rate would be somewhere between 35 to 40%. (about $25,000)
Michelle’s Long Term Gain
Michelle has a $70,000 that will be taxed at 20%.($14,000). If Michelle was not in the top tax bracket, it would only be taxed at 15% ($10,500).
If a person receives cryptocurrency as a result of employment, then the cryptocurrency value is determined on the day it is received and Income taxes must be paid.
In other words, if your employer paid you $400,000, but paid you in cryptocurrency instead of a check or cash, you still owe income tax that you would have otherwise had to pay if you had receive the money via regular currency – and you would have to pay any potential social security tax, NIIT, etc.
The idea is this: The IRS is not going to let you or your employer circumvent the tax rules to avoid paying tax, just because you received cash equivalent instead of actual cash.
From a baseline perspective — you work, and as a result of your work you were paid, and now the IRS wants its cut.
Your basis in the future sale of the cryptocurrency at a future time would be $400,000.
Exchanges in general can be confusing when it comes to the taxation portion of the exchange, so we are going to do our best to keep it very simple, using this example:
- Jennifer purchased Bitcoin for $10,000 and is now worth $20,000.
- Peter purchased Litecoin for $5,000 and is now worth $17,000.
For one reason or another Jennifer wants to Exchange her bitcoin for Peters Litecoin.
Jennifer: Jennifer has a basis $10,000. She is receiving Peter’s cryptocurrency for $17,000, which is the current market value. Jennifer has a gain of $7,000 of which she will pay tax on.
In the future, when Jennifer wants to sell her cryptocurrency, her new basis would be $17,000 instead of $10,000 because she paid tax on the full value.
Peter: Peter has a basis of $5,000 in the Litecoin. He is receiving cryptocurrency worth $20,000. Therefore, Peter has a gain of $15,000, which he will also pay tax on.
In the future, if he wants to sell cryptocurrency, his new basis will be $20,000.
In other words, when you exchange one piece of property for another, you receive the property at the current market value. So, if you received a piece of property which is more valuable than the property you have, you pay capital gain tax (usually) on the gain.
You determine the tax by subtracting the cost of the purchase of the property from the market value of the property you received, to determine your gain amount – and you pay tax on the gain amount.
You Received Cryptocurrency as a Gift
If you receive cryptocurrency as a gift, the typical tax rule is that you receive the carryover basis, which will serve as the basis for your crypto currency.
For example, your grandma purchased cryptocurrency a few years back for $20,000. Since your grandma spends her days researching cryptocurrency (and playing mahjong) she believes her investment is going to increase in value.
Your grandma was correct, because now it’s worth $400,000. She gives you the cryptocurrency and tells you to go enjoy yourself.
You decide you want to buy a house, but they do not accept Cryptocurrency as legal tender, so you sell the crypto first. Do you receive $400,000 tax-free, since that is the Fair Market Value on the date you received it?
…. Unfortunately, no. When you receive the gift from your grandma, you have to take it at that value she purchased it for, which is $20,000 – which also means you have a $380,000 gain on the exchange. (aka Carry-Over Basis)
You Received Cryptocurrency as an Inheritance (Step-up)
Unfortunately, your sweet grandma passed away before she had a chance to give you the gift. But, she was smart, she had a will, and she left you her cryptocurrency in the will.
Under estate tax rules, you receive the market value of the property on the date your grandma passed aka (Stepped-Up Basis).
Therefore, the value of the cryptocurrency you receive is now $400,000, so when you sell the Crypto for $400,000, you do not pay any tax.
1031 and Cryptocurrency
A 1031 exchange is a way to defer tax. For example, you have a rental property that you purchased for $100,000 that is now worth $1,000,000.
You don’t want to sell the property and pay tax, so you would rather shift the investment into a new rental property or something similar (since you are relocating)
You execute a 1031 exchange (which has very specific timing rules and holding requirements) and absent any boot (usually cash or mortgage payoff in addition to the property) you receive a new property, while maintaining the same basis ($100,000) and it is not considered a sale, so that you do not have to pay Capital gains tax at the time.
**Unfortunately, at this time1031 rules do not apply to cryptocurrency for exchanges for coins in 2018 and subsequent (e.g., when filing your 2017 tax return in 2018 regarding prior exchanges, there may be room for debate, but most likely not for exchanges made in 2018 going forward)
Selling Cryptocurrency as inventory is complex and beyond the scope of this article (LIFO, FIFO, COGS, etc.)
If you knowingly traded or sold crypt currency, and intentionally avoid paying tax, or reporting the sales or exchanges on a Schedule D/Form 8949, you may find yourself in hot water.
Most, if not all crypto-exchanges track and report the information, and will provide it to the IRS – whether they want to or not.
In fact, even Coinbase one of the largest (if not the largest) exchange lost its fight against the IRS, and has to disclose the names of many of it clients.
Since cryptocurrency has been dubbed “the new Swiss bank account,” and the IRS refuses to knowledge cryptocurrency as currency, there is a high likelihood that the IRS will take a heavy hand against anybody believe isn’t only evading tax and reporting.
Reporting Foreign Bitcoin/Cryptocurrency
This is where it can get infinitely more complicated, primarily because of the lack of direction by the U.S. Government, coupled by the penalties associated with noncompliance of required foreign disclosure activities.
Here are the basics:
FBAR /FinCEN 114
FBAR (Report of Foreign Bank and Financial Account form) was created by FinCEN, is now enforced by the IRS. If a person has more than $10,000 on any day of the year in foreign accounts (not limited to bank accounts), then the person is required to disclose this information annually on an FBAR. The failure to properly report may result in penalties stemming from a warning letter, all the way up to a 100% penalty in a multiyear audit.
Do You have to report foreign held cryptocurrency?
FinCEN and the IRS are not clear. Since the IRS has determined that cryptocurrency is actually property and not currency, common sense would dictate that it would not need to be reported on the FBAR…since the FBAR it Is used to report foreign accounts.
But not so fast….
FBAR Rules are Contradictory
The FBAR rules can be confusing. For example, a safety deposit box in the bank would not be considered an account, and if you read various blogs, they would all say that a safety deposit box is not considered an account. The blog will also tell you the precious metals and stones of course do not need to be reported.
But, if you refer to the Internal Revenue Manual you will find the following clarification:
Safety Deposit Box
A reportable account may exist where the financial institution providing the safety deposit box has access to the contents and can dispose of the contents upon instruction from, or prearrangement with, the person.
Precious Metals, Precious Stones, or Jewels Held Directly by the Person
31 USC 5314 defines “foreign financial agency” as “a person acting for a person as a financial institution, bailee, depository trustee, or agent, or acting in a similar way related to money, credit, securities, gold, or a transaction in money, credit, securities, or gold.”
Therefore, a reportable account relationship may exist where a foreign agency holds precious metals on deposit or provides insurance or other services as an agent of the person owning the precious metals.
In other words, the information can be conflicting. This is primarily because even though the FBAR is being enforced by the IRS (and they have their own internal Revenue manual), the form was created by FinCEN, which has its own enforcement standards.
In other words, be careful with reporting or non-reporting cryptocurrency,
Remember the Purpose of Foreign Reporting
From the IRS and FinCEN’s perspective, the purpose of filing the FBAR and other related international informational returns is to promote transparency. Typically, the Government and courts will err on the side of the U.S. government as opposed to splitting hairs and throwing support behind nuances argued by people seeking to avoid reporting and/or maintain anonymity.
Presumably, if you were ‘holding’ the cryptocurrency in your own personal wallet on your own personal computer, chances are it would not be reported.
But, the further away you drift from that situation, the more you have to consider whether you should report.
- Is there virtual currency and regular currency in the same account?
- Have you exchanged the currency for cash and left it in the trading account?
- How much cryptocurrency do you actually have in the foreign Account
It is important to know that in recent months enforcement of Bitcoin/Cryptocurrency has been stepped up. Specifically, with the courts approving a slimmed-down version of the IRS subpoena against Coinbase, your information is nowhere near as private or anonymous these companies would like you to believe it is.
** In addition to FBAR, you may also have other reporting requirements under FATCA, Form 3520, Form 3520-A and Form 8621 (amongst others).
Are you out of Compliance?
It is human nature to want to avoid making a proactive submission to a government agency such as the IRS before the IRS ever discovers the non-compliance. But, typically that is best path forward.
Moreover, if you realize you are out of compliance and begin researching online, you may begin to feel as though it is hopeless. Some of these attorneys and CPAs make it appear that everyone with unreported assets or income is going to be severely penalized and shipped off to prison.
That is simply not the case.
You have options, and depending on the facts and circumstances of your situation, your options may include the streamlined program, reasonable cause, or the delinquency procedures – which may result in significantly reduced fines and penalties (and may even receive a penalty waiver).
IRS Offshore Reporting & Tax Amnesty Programs
There are 5 main versions of the program. Here are the 5 Main Options:
(New) Updated Traditional IRS Voluntary Disclosure Program
When OVDP (Offshore Voluntary Disclosure Program) ended back in September 2018, the Internal Revenue Service was unclear as to whether a New “Offshore” Voluntary Disclosure Program would be introduced. Instead of a “new program,” the traditional voluntary disclosure program was expanded.
You can use the disclosure program to submit FBARs for your Foreign Bank Accounts, FATCA, PFIC, along with your Domestic Income
SFCP – IRS Streamlined Filing Compliance Procedures
IRS Streamlined Filing Compliance Procedures are a stand-alone “streamlined” version of the traditional OVDP. The “stand-alone” streamlined filing procedures were created in 2014 by the Internal Revenue Service.
The purpose of the procedures are to assist taxpayers who were noncompliant with offshore reporting requirements – but were also non-willful.
If the Taxpayer can certify under penalty of perjury of being non-willful, the IRS reduces the penalty structure, and even waives the penalty for applicants who qualify as foreign residents.
SDOP – IRS Streamlined Domestic Offshore Procedures
SDOP is the Streamlined Domestic Offshore Procedures, and it is the program designed for for U.S. persons residing in the United States (or do not meet the technical “Foreign Resident Test”)
SFOP – IRS Streamlined Foreign Offshore Procedures
SFOP is the Streamlined Foreign Offshore Procedures. These are the Procedures for U.S. persons residing outside the United States is referred to as the Streamlined Foreign Offshore Procedures.
DIRP – Delinquency Procedures for Offshore & Foreign Accounts and Assets
If you do not have any unreported income resulting in having to amend your tax returns — and all you have is unreported foreign assets, accounts or investments with no unreported income, you may be in luck. In these instances, in which you do not otherwise need to file for traditional offshore disclosure or the Streamlined Filing Compliance Procedures — you may qualify for the Delinquency Procedures and avoid any penalties.
RC – Reasonable Cause for Offshore & Foreign Accounts and Assets
Reasonable Cause may be an option for some taxpayers. Specifically, if you were completely non-willful in your failure to disclosure, and were unaware that there was any reporting requirement, then the thought of paying any penalty may sound absurd.
Fixing Lesser Experienced Law Firm mistakes.
IRS Voluntary Disclosure is complex enough for experienced practitioners who focus exclusively in the area of law, never mind relative newcomers who are trying to handle more than just offshore voluntary disclosure as part of their everyday tax practice.
We know, because those cases usually end up on our door-step.
IRS Offshore “Potential” Penalty List
The following is a list of potential IRS penalties for unreported and undisclosed foreign accounts and assets:
Failure to File
If you do not file by the deadline, you might face a failure-to-file penalty. If you do not pay by the due date, you could face a failure-to-pay penalty. The failure-to-file penalty is generally more than the failure-to-pay penalty.
The penalty for filing late is usually 5 percent of the unpaid taxes for each month or part of a month that a return is late. This penalty will not exceed 25 percent of your unpaid taxes. If you file your return more than 60 days after the due date or extended due date, the minimum penalty is the smaller of $135 or 100 percent of the unpaid tax.
Failure to Pay
f you do not pay your taxes by the due date, you will generally have to pay a failure-to-pay penalty of ½ of 1 percent of your unpaid taxes for each month or part of a month after the due date that the taxes are not paid. This penalty can be as much as 25 percent of your unpaid taxes. If both the failure-to-file penalty and the failure-to-pay penalty apply in any month, the 5 percent failure-to-file penalty is reduced by the failure-to-pay penalty.
However, if you file your return more than 60 days after the due date or extended due date, the minimum penalty is the smaller of $135 or 100 percent of the unpaid tax. You will not have to pay a failure-to-file or failure-to-pay penalty if you can show that you failed to file or pay on time because of reasonable cause and not because of willful neglect.
Civil Tax Fraud
If any part of any underpayment of tax required to be shown on a return is due to fraud, there shall be added to the tax an amount equal to 75 percent of the portion of the underpayment which is attributable to fraud.
A Penalty for failing to file FBARs
The civil penalty for willfully failing to file an FBAR can be as high as the greater of $100,000 or 50 percent of the total balance of the foreign financial account per violation. See 31 U.S.C. § 5321(a)(5). Non-willful violations that the IRS determines were not due to reasonable cause are subject to a $10,000 penalty per violation.
A Penalty for failing to file Form 8938
The penalty for failing to file each one of these information returns is $10,000, with an additional $10,000 added for each month the failure continues beginning 90 days after the taxpayer is notified of the delinquency, up to a maximum of $50,000 per return.
A Penalty for failing to file Form 3520
The penalty for failing to file each one of these information returns, or for filing an incomplete return, is the greater of $10,000 or 35 percent of the gross reportable amount, except for returns reporting gifts, where the penalty is five percent of the gift per month, up to a maximum penalty of 25 percent of the gift.
A Penalty for failing to file Form 3520-A
The penalty for failing to file each one of these information returns or for filing an incomplete return, is the greater of $10,000 or 5 percent of the gross value of trust assets determined to be owned by the United States person.
A Penalty for failing to file Form 5471
The penalty for failing to file each one of these information returns is $10,000, with an additional $10,000 added for each month the failure continues beginning 90 days after the taxpayer is notified of the delinquency, up to a maximum of $50,000 per return.
A Penalty for failing to file Form 5472
The penalty for failing to file each one of these information returns, or to keep certain records regarding reportable transactions, is $10,000, with an additional $10,000 added for each month the failure continues beginning 90 days after the taxpayer is notified of the delinquency.
A Penalty for failing to file Form 926
The penalty for failing to file each one of these information returns is ten percent of the value of the property transferred, up to a maximum of $100,000 per return, with no limit if the failure to report the transfer was intentional.
A Penalty for failing to file Form 8865
Penalties include $10,000 for failure to file each return, with an additional $10,000 added for each month the failure continues beginning 90 days after the taxpayer is notified of the delinquency, up to a maximum of $50,000 per return, and ten percent of the value of any transferred property that is not reported, subject to a $100,000 limit.
Fraud penalties imposed under IRC §§ 6651(f) or 6663
Where an underpayment of tax, or a failure to file a tax return, is due to fraud, the taxpayer is liable for penalties that, although calculated differently, essentially amount to 75 percent of the unpaid tax.
A Penalty for failing to file a tax return imposed under IRC § 6651(a)(1)
Generally, taxpayers are required to file income tax returns. If a taxpayer fails to do so, a penalty of 5 percent of the balance due, plus an additional 5 percent for each month or fraction thereof during which the failure continues may be imposed. The penalty shall not exceed 25 percent.
A Penalty for failing to pay the amount of tax shown on the return under IRC § 6651(a)(2)
If a taxpayer fails to pay the amount of tax shown on the return, he or she may be liable for a penalty of .5 percent of the amount of tax shown on the return, plus an additional .5 percent for each additional month or fraction thereof that the amount remains unpaid, not exceeding 25 percent.
An Accuracy-Related Penalty on underpayments imposed under IRC § 6662
Depending upon which component of the accuracy-related penalty is applicable, a taxpayer may be liable for a 20 percent or 40 percent penalty
Possible Criminal Charges related to tax matters include tax evasion (IRC § 7201)
Filing a false return (IRC § 7206(1)) and failure to file an income tax return (IRC § 7203). Willfully failing to file an FBAR and willfully filing a false FBAR are both violations that are subject to criminal penalties under 31 U.S.C. § 5322. Additional possible criminal charges include conspiracy to defraud the government with respect to claims (18 U.S.C. § 286) and conspiracy to commit offense or to defraud the United States (18 U.S.C. § 371).
A person convicted of tax evasion
Filing a false return subjects a person to a prison term of up to three years and a fine of up to $250,000. A person who fails to file a tax return is subject to a prison term of up to one year and a fine of up to $100,000. Failing to file an FBAR subjects a person to a prison term of up to ten years and criminal penalties of up to $500,000. A person convicted of conspiracy to defraud the government with respect to claims is subject to a prison term of up to not more than 10 years or a fine of up to $250,000. A person convicted of conspiracy to commit offense or to defraud the United States is subject to a prison term of not more than five years and a fine of up to $250,000.
How to Find Experienced & Reputable Offshore Voluntary Disclosure Counsel
Nearly all the experienced Attorneys in this field will have 5 Main Attributes:
- Board Certified Tax Law Specialist
- Master’s of Tax Law (aka LL.M.)
- Dually Licensed as an Enrolled Agent or CPA
- Around 20-Years of Private Practice experience
- Extensive Litigation, Trial and related high-stakes experience.
Why is This Important? Because People Can be Whomever They Want to be Online
And that is the problem.
In recent years, we have had many clients come to us after being horribly represented by inexperienced tax counsel. While we are sure it is a problem in many fields, it seems to run rampant in IRS offshore voluntary disclosure.
These Attorneys ‘manipulate’ their past legal experiences, such as working for the IRS — to make themselves sound more experienced than they are. You later find that they never worked as an attorney for the IRS, or even in the offshore disclosure department.
The IRS has nearly 100,000 employees, and just being one of them does not make an attorney qualified to be an effective and experienced offshore voluntary disclosure tax attorney specialist.
IRS Offshore Disclosure is complex enough for experienced practitioners who focus exclusively in the area of law, never mind relative newcomers who are trying to handle more than just offshore voluntary disclosure as part of their everyday tax practice.
International Offshore Disclosure Lawyer Fees – How Much are They?
As in life, you get what you pay for.
To get the best representation possible, you need an experienced Board Certified Tax Law Specialist, with advanced degrees and advanced certifications.
If you want to hire a newer private-practice attorney that just opened shop a few years ago, hoping to save a little money on fees, where they sold you on some “over-hyped” Kovel Letter – you’re putting yourself at risk.
Those cases usually end up on our doorstep down the line after the attorney made significant mistakes on the submission (sometimes costing the client significant amounts of time and fees that could have been avoided)
Golding & Golding – Board Certified in Tax Law
Golding & Golding represents clients worldwide in over 70-countries exclusively in Streamlined, Offshore and IRS Voluntary Disclosure matters. We have successfully completed more than 1000 streamlined and voluntary disclosure submissions.
Our Team Lead is a Board Certified Tax Law Specialist (Less than 1% of Attorneys nationwide) and Enrolled Agent, with a Master’s of Tax Law (LL.M.)
Mr. Golding leads his team in each and every case we accept for submission.
- Learn more about the Board Certified Tax Law Specialist credential
- Learn the benefits of hiring a Dually Licensed Attorney/Tax Professional
- Learn more about Golding & Golding’s Case Accomplishments
- Learn more about Golding & Golding Testimonials from prior clients
We are the “go-to” firm for other Attorneys, CPAs, Enrolled Agents, Accountants and Financial Professionals worldwide.
We Can Help You.
Sean holds a Master's in Tax Law from one of the top Tax LL.M. programs in the country at the University of Denver, and has also earned the prestigious Enrolled Agent credential. Mr. Golding is also a Board Certified Tax Law Specialist Attorney (A designation earned by Less than 1% of Attorneys nationwide.)
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