Tag: IRS

IRS

Taxation of cryptocurrency forks and airdrops

In Revenue Ruling 2019-24 the IRS considered what are the tax consequences of crptocurrency forks and airdrops.  Those of us who hold, or held, cryptocurrency during widely-followed forks, such as Bitcoin’s 2018 fork into Bitcoin and Bitcoin Cash, know the drill.  The development community can’t agree on fundamental issues about the particular cryptocurrency, such as the amount of data each “block” should carry and how often such blocks should be validated on the blockchain.  Rather than compromising, one faction or the other generates a new code base using the existing coin and adds (or subtracts) their modifications, later releasing the new code into the world as a new coin or token.  Voila, the “fork” (as in a fork in the road) has birthed a new cryptocurrency on its very own blockchain, to thrive or survive alongside its “parent” coin.  Sometimes (as has been the case with Bitcoin Cash), that new coin thrives quite handsomely, resulting in increased wealth in the hands of the HODLer.  Money for nothing?  According to the IRS, actually, no.

The Revenue Ruling’s definitions of cryptocurrency and the mechanics of forking and airdrops is, to the credit of the IRS, spot on.  Someone has been doing their homework into what exactly they are looking at, which is important, since bad inputs make for bad outputs.  In summary, the Ruling notes that the end result of the fork is one of two scenarios:  (i) the taxpayer receives the new cryptocurrency, which is credited to his account or otherwise received by him (via “airdrop”, in the terms of the opinion); or (ii) the taxpayer does not receive the new crypto for any number of reasons, the one cited being where the exchange on which the taxpayer had her pre-fork crypto does not support the new coin, and that crypto-holder’s rights vanish into thin air.

The first conclusion the IRS comes to, which is that there is gross income to the taxpayer where he or she receives the forked coin is, in my view, correct.  Under classic income tax laws there is a clear “accession to wealth”, that is, you have more money in your pocket (perhaps a lot more) post-fork than pre-fork.

Not all income, however, is created equal in the eyes of the tax law.  Once you determine you have income you must then consider the character of that income, that is, capital, ordinary, or something else.  There are books written about these distinctions.  For our purposes, “ordinary” income includes things like a salary or proceeds from the sale of your business’ inventory.  Capital gain (or loss for that matter), in contrast, relates to purchases and sales of “capital assets”.  Capital assets are, for most people, their investments, perhaps including real estate, stocks and bonds, and cryptocurrency.  This distinction is critical, since different types of income are subject to different income tax rates.

The timing matters too – ordinary income is recognized the minute you either receive it (for cash basis taxpayers) or when “all events” have occurred (for accrual basis taxpayers) that result in the taxpayer having dominion and control over the assets.  For capital assets there is a taxable event where the property is “sold or exchanged”, that is, in some cases, mere receipt of a capital asset will not always trigger tax consequences.  Rather, the law keeps a kind of “tally” of the amount of tax you will have to pay (at some point) in what’s called the “basis” of the asset.  The “basis”, in plain language, is the amount of your investment in an asset.  If the price at sale is above your basis, voila, capital gain.  If the price is below it, capital loss.

Let’s take stock splits as an example.  Let’s say you bought 1 share of Apple (AAPL) at $300.00 (everyone seems to like using Apple as an example). Assume for purposes of this example that you are not a dealer in securities or a professional trader.  What do we know about AAPL in your hands?  (1) That is is (in all likelihood) a “capital asset” (an investment outside of your ordinary trade or business); and (2) Your “cost basis” is $300.00.  As of this evening AAPL is trading at around $317.00.  What do we know now?  We know that, given your basis of $300.00, you now have $17.00 of profit.  If you sold AAPL at $317.00, you would have $17.00 of capital gain.

Fine.  Now assume that AAPL splits two for one, that is, all shareholders of AAPL will receive double the number of their shares, so now you have two shares of AAPL.  Here’s the trick:  your basis in each of the shares is also cut in half.  Therefore, you now have two shares of AAPL.  What’s the price of each?  $158.50.  What’s your basis in each?  $150.00.  What if you sold your two post-split shares of AAPL?  What would your gain be?  Still…$17.00.  See?  Your basis “account” adjusted to reflect the economic reality of the transaction, and spread your initial $300.00 investment across the two shares.

Now imagine that instead of splitting, AAPL pays you a cash dividend of $1.00 per share every quarter (it’s actually around $0.77, but let’s use round numbers).  Dividends are, unlike shares received in a stock split, ordinary income (unless “qualified”, which we won’t get into here).  OK, so why don’t we just treat the dividend like a capital asset, and adjust the basis without having a taxable event?  Well, because the law says so, and perhaps in part because dividends are paid in cash.

The question then is, did the IRS get the second part right, that is, the character of the income that you receive when you receive airdropped tokens from a hard fork.  In my opinion, no.

Forked tokens can feel like “manna from heaven” as the saying goes, but in my opinion they much more closely resemble stock splits than dividends.  My opinion is based on what the IRS has told us for many years – that cryptocurrency is property, not money.  Property held as a capital asset that produces more property (like a stock split) should be treated in the same manner as a stock split, and not as if the forked coins are the same as cash, which they most certainly are not.

For starters, the recipient of the forked coin has extreme price risk from the get-go.  It is not uncommon for a forked coin to spike wildly upon receipt (which, according to the opinion, is then its taxable value) only to collapse violently thereafter.  The token holder may not stand a chance – if you’re not in front of your computer ready, willing and able to sell at the precise moment the coin is received – you may end up with a big tax bill AND an asset that has declined significantly in value.  This is neither consistent nor fair.  A true dividend does not have this inherent risk.  True, currencies are always fluctuating in value against other currencies (and gold), but in the short term, your $1.00 AAPL cash dividend is going to buy the same amount of coffee (perhaps half a cup) whether you’re at your computer when its paid or not.

Second, the IRS has further confounded and complicated cryptocurrency accounting for everyone.  It is bad enough that technically, you have to report either gain or loss for the use (that is, “sale or exchange”, remember?) of crypto for anything, including our proverbial cup of coffee.  Now, you must track the basis of assets with different characters.  This will be a huge challenge for developers of crypto accounting and recordkeeping software, thereby making the neat and clean records the IRS wants taxpayers to keep all the more elusive, and often inaccurate.

In essence, the IRS is looking to have it all ways – cryptocurrency is property subject to the reporting and accounting for capital gain and loss, except when it’s not.  And by the way, if you DO decide to hang on to your airdropped coins, only to sell them later if the price goes way up, you may also have capital gain to pay later, on the very same asset that gave rise to ordinary income upon receipt, even though that asset was really capital in nature all along.

So, brush off your spreadsheets.  Between cold storage wallets, intra-exchange transfers, and now, airdropped, forked coins, it will continue to be a challenge to stay in compliance in the crypto world.

(c) 2020 Good Attorneys At Law, PA

Bitcoin

Bitcoins Are Property, Sayeth The IRS

Bitcoin
IRS says Bitcoins are property

IRS States Bitcoins Are Property

So the IRS has issued a Notice on the virtual currency known as Bitcoin:  It’s not a currency, it’s property. Jolly good, you say, so what? Well, that decision has some major tax implications for the future of what adherents will insist is a virtual currency, or “cryptocurrency”.  That has a number of important tax considerations, but for the uninitiated let’s start with the basics, that is, what the heck is Bitcoin?

For these purposes let’s ignore the IRS and grant Bitcoin respect as a “virtual currency”, that is, a medium of exchange, something intangible asset that people can trade for other goods or services (or, other Bitcoins). It owes its existence to computer programmer Satoshi Nakamoto, who created the algorithms related to Bitcoin in and around 2009.  It has no tangible existence – one cannot carry a Bitcoin in one’s wallet – but rather depends upon two types of technology for its existence:  “peer to peer networking” and “public key encryption”.  If you find the technical stuff boring, skip down to “Bitcoins Are Property” below.

Bitcoin Technology

Peer to peer communication is, put simply, stuff that lots and lots of different people on lots and lots of computers do in a “distributed” or decentralized manner, that is, there is no single computer or person that controls what goes on.  Napster was one of the first and best known peer to peer networks for sharing music.  Millions of different people had songs on their computers.  These people used Napster’s software, which you could download onto your computer for free, to share the files over the internet with anyone else also running Napster.

No one was in charge – you simple stood up to be recognized as a “node” on the Napster network, sort of like establishing your own bus stop along a busy route.  Then you shared what you had in the same way as you might conduct a pot luck dinner at your local church.  The church opens its doors, provides the meeting space (and perhaps one of those big silver coffee makers), and everyone brings their own dishes to share.  There are rules:  clean up after yourself, don’t show up empty handed, but otherwise no one is in charge of the event.  Simple.

Then there’s part two – public key encryption. The deep specifics of this system are beyond the scope of this article (and my comprehension), but in simplest terms PKI is a system by which people can share information securely using a “public” key, an external reference that functions a bit like a PO Box, combined with each user’s “private” key, like the key to that box. You send someone a private letter by referencing their PO Box (which is public), but only the owner can open (or “decrypt”, in the computer world) the letter by using their private key.

These technologies are critical to Bitcoin in that its creators needed a system that allowed them to be traded and exchanged using a decentralized (peer-to-peer) secure (PKI-based) system. When Mr. Nakamoto created his alogrithm he set a finite limit on the number of Bitcoins that will ever exist: 21 million. There are currently around 12 million in circulation, with about 9 million more to be discovered. They are created just as virtually as they are traded: anyone so inclined, and with the computer resources and knowledge to do it, can “mine” Bitcoins by verifying existing Bitcoin transactions. The miners get a commission, in essence, for adding value to the entire virtual monetary world.  So, whether you bought your Bitcoins, received them in exchange for goods or services, or mined them you have created or received something of value.

Bretton Woods participants
Tea time at Bretton Woods

What is Currency?

In addition to technology what makes up a currency is, put simply, that people think its a currency, or a “medium of exchange”.  If I give you a dollar for a lollipop there’s an immediate understanding that what I am giving you has some intrinsic, quantifiable value (that is, a dollar is worth, surprisingly, $1), that the dollar has an equivalent value in goods or services (lollipops), and that the recipient of my dollar can reuse it to exchange for something else that he might want (say, balloons).  This latter part is important.  Part of what makes a currency a currency is not only what the original two transacting parties think (our agreement to exchange dollar for lollipop), but that everyone else understands that what both of the parties got has some measurable value.  In monetary terms the dollar is therefore not only our “medium of exchange”, but is also recognized as “legal tender” for the transaction.  Who decides what is “legal tender”?  The simple answer is the government, in part because of the United States Constitution and in part under policies that have evolved over the years.   For a fascinating history on what makes money what is it (and who gets to decide that) read up on the exceptional Heritage website.

IRS Rules Bitcoins Are Property

As the use (and trading) of Bitcoins has grown so has the government’s interest in them.  Part of why the IRS would care involves whether someone has “acceded to wealth” when they create, sell or exchange a Bitcoin.  In other words, has someone to the transaction gotten richer by dealing in Bitcoins rather than a “true” currency?  It is a longstanding principle of tax law that such accessions to wealth are “income” which might be taxable to the recipient.  I have acceded to wealth, for example, if someone gives me a dollar (for nothing in return), a share of stock or a piece of real estate

Having looked at the issue the IRS came down to the conclusion that Bitcoins are property, not a “currency”.  In so doing the US government made using Bitcoin as a medium of exchange much more complicated.  This is because, put simply, you, the Bitcoin user, must now keep track of what you paid for your Bitcoin, where it came from, and whether you have tax consequences when you use it to purchase something.  This is a whole host of worries you never have to deal with when you use a “true” currency.

The Tax Consequences of Using Bitcoins

So what exactly do you have to track and bother with?  The answer, in short, is your “basis”.  Basis is just a word.  It means “what is my investment in this thing”.  If  you paid $10 for a share of stock, that is your basis in it (more technically, your “cost basis”).  If that stock appreciates to $15 and you sell it, you have “acceded to wealth” by $5, on which you pay tax.  So, when it comes to Bitcoins, according to the IRS, go forth and buy, sell and exchange it however you like, however, be sure you track your basis and report your gain (or loss) each time you do it.

This is a huge pain, perhaps by design.  Tracking one’s basis in readily exchangeable, intangible things like stock, or now Bitcoins, is extremely complicated.  Stock brokers use highly sophisticated software that tracks stock transactions, accounting for all of the Byzantine and upside down rules that govern these transactions.  Few, if any, Bitcoin users are prepared for this level of reporting.  Figuring out your gain or loss also assumes that you are able to trace exactly which Bitcoin you purchased to use for your cup of coffee.  This is similarly difficult given that Bitcoins are “tumbled” into “blocks”, that is, virtually sliced and diced so that it is unclear which Bitcoin you got, or who created or received it.  This serves to protect Bitcoin users’ privacy, something the government is viewing with increasing hostility.

Philosophically I am disappointed, though hardly surprised, with this decision.  Our entire banking system, really, the entire global economy is in large part based on the dollar as a medium of exchange.  That serves an important purpose in that it lends predictability to how oil, carrots or lollipops are priced.  There are many “data points”, that is, places to compare, contrast and get an idea of what something should cost.  The downside, however, is that it preserves a government’s monopoly on how you do business.  Again, this is desirable in many ways, but has a dark side:  the government, not you, decides what the currency is worth.  The more currency the government prints, the less it can buy or earn in the form of interest.  You, the buyer, might not see that the dollar you had yesterday is not the dollar you have today, but those who are exchanging their oil, carrots and lollipops do.  Words you hear a lot like “purchasing power” and “inflation” can be tricky to grasp, but are very important to how people live.

What Now?

The matter is not entirely settled.  Changing how things work depends on how good the idea is, how strong are the forces against it and who has more patience.  Congress, not the IRS, has the ultimate constitutional authority to determine what is considered a “true” currency, and in time this may be the case.  Further, the IRS may have done recent Bitcoin purchasers a service.  Where you have gains you can also have losses.  Just as you accede to wealth through appreciated Bitcoins, you can claim a loss when you didn’t buy so well.  As a practical matter, the IRS is entirely unprepared to enforce its new position regarding Bitcoins, as it is unlikely that more than a tiny fraction of this bureaucracy understand them.  So, time will tell.

I want to hear from you!  Should Bitcoin be considered “currency”?  Does the confidentiality of Bitcoin transactions outweigh the risk that they could be used for illicit purposes?  Leave a comment, or contact me for a stimulating discussion over a cup of coffee.

 

Bill Davidson’s $2.8 Billion Estate Tax Bill

Estate Tax Bill the Size of a Small Nation’s GDP

 

Estate Tax
Estate taxes tend to be a bit more

The estate of billionaire Bill Davidson is suing the IRS. Their beef: a $2.8 billion tax deficiency notice. That’s in the neighborhood of GDP for small nations like Greenland and the Cayman Islands! A private man, most would know Mr. Davidson for owning the Detroit Pistons sports franchise. He financed the purchase of his beloved Pistons through a personal fortune amassed running the family business of glass manufacturing, Guardian Industries. Forbes estimated his wealth at $3.5 billion when he passed in 2009.

The heart of this tax dispute focuses on tax planning strategies and accounting methods Mr. Davidson employed prior to his death. The sheer magnitude of the financial dispute is rare, but the techniques his estate used are not uncommon when managing wealth. The IRS’ laundry list of complaints include:

  • Transfers of wealth to family.  

Lawyers drafted several trusts on behalf of Mr. Davidson, months before his death, for his children and grand-children. Each trust is valued at tens of millions of dollars and are funded by Guardian Industries stock. The IRS claims, however, that accountants undervalued each stock by up to $1,500. Davidson’s lawyers counter that the IRS’ accounting does not consider a free fall in automotive and construction stocks occurring in late 2008 and 2009 when valuing the stocks.

  • Self-Cancelling Installment Loans (SCIN’s).

Mr. Davidson also transferred wealth to his heirs through a series of “self-cancelling installment notes” (SCIN’s). SCIN’s operate like a loan or mortgage. Mr. Davidson gave certain assets (e.g. homes, boats, cars) to his heirs. The heirs, in turn, had to make regular payments on the gifting of these assets. The big difference between typical loans and SCIN’s, however, kicked in when Mr. Davidson died. The debt his heirs owed owed on the gifted assets evaporated and they owned the assets free and clear. The IRS claims the payments on these SCIN’s should have been higher. These low payments, therefore, qualify the assets as “taxable gifts.” Morbidly, the IRS’ assertion that the payments were too low is because it believes a 5 year life expectancy for Mr. Davidson was too long when lawyers drafted the SCIN’s.

  • Transfers of wealth to his spouse.

Not to be left out of the fun, the IRS argues that Mr. Davidson made taxable gifts to his wife for tens of millions of dollars. His wife also used money from his fortune to build a home for her daughter and son-in-law. The IRS claims lawyers left these figures out when settling his estate.

The IRS ended up calculating Mr. Davidson’s taxable estate and gifts to be worth $4.6 billion. It arrived at the $2.8 billion tax deficiency by figuring $1.9 in estate tax and penalties, as well $900 million in other taxable gifts and back taxes. Outside groups, however, say the IRS is double-counting to come up with a $2.8 billion figure. This is likely true because the IRS cannot later add amounts it did not initially include in its deficiency notice. It would not be surprising to see a settlement or judgment that results in a figure far below the IRS’ stated deficiency.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A. He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida.

Contact us toll free at (877) 771-1131 or by email to info@goodattorneysatlaw.com.

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IRS Fresh Start Program Updates – Erasing Tax Debt

The IRS Gets Fresher with Its Tax Debt Relief Program

 

IRS Fresh Start Program Update
IRS Fresh Start Program Update

I recently had the pleasure of attending a tax seminar (hold the laughter) on updates to the IRS’ Fresh Start program. This program helps to erase tax debt. You can find out generally how the entire program works here.

The Godfather of Tax Debt Resolution, aka Robert (Bob) McKenzie, laid out the details. The following are my Top Ten changes to the program:

1.  Tax liens are no longer automatic.

Tax Liens are no longer automatic:  The IRS used to automatically file a tax lien when you were late on taxes. This tax lien creates a black mark on your credit report. Borrowing becomes more expensive, or simply not available, when a tax lien shows up.

2. The IRS is currently accepting “Offers in Compromise” (OIC) at historically high levels.

One in three OIC’s were accepted by the IRS last year alone.

3.  OIC – Reduced valuation of assets.

The IRS looks at the “Reasonable Collection Potential” (RCP) when deciding whether to accept an OIC. In shorthand, this is how much money the IRS thinks it can get from you. The RCP goes down when changing the formula that calculates the value of your assets. This in turn lowers an OIC figure that the IRS may accept.

4.  OIC – More allowable expenses.

This is another factor in calculating the RCP. The RCP goes down by also changing the formula that calculates your expenses. Of particular importance, the IRS now factors in student loan payments when adding up your expenses.

5.  OIC – Calculated future income lower.

Another change in the formula to figure your RCP. The greater your calculated future income, the greater your RCP. The IRS, however, has significantly reduced the period it uses to calculate future income. It used to calculate future income by taking your monthly income and multiplying that by 48-60 months. It now uses a 12-24 month multiplier only.

6.  Fresh Start allows more time to pay off an “Installment Agreement” (IA).

IA’s allow you to pay off your tax debt over multiple years. The maximum period to pay off an IA has increased to 6 years from 5 years.

7.  Streamlined IA – Maximum amount raised from 25K to 50K.

If your tax debt is $50,000 or less, and you follow the rules, the IRS must accept your proposed IA. This is the “streamlined” IA. The former maximum amount for streamlined IA’s was $25,000.

8.  Streamlined IA – Reduced financial records burden.

The IRS has also changed its policy on submitting detailed financial records. If your tax debt is less than $50,000, you need submit information only about your employer and bank accounts. The threshold was formerly $25,000, and you had to submit a great deal of private information to the IRS (not that it ever would be used against you).

9.  Lien thresholds increased from 5K to 10K.

Along with no more automatic tax lien, the amount to file a tax lien has been increased to $10,000. This undoubtedly provides comfort to those who can ill afford damaging credit marks.

10.  Lien withdrawal made easier with Fresh Start.

There are two main ways to get rid of a tax lien. First, a tax lien release changes your credit report to show that you no longer owe back taxes. That you once had a tax lien is still there, though. A tax lien withdrawal removes the record completely. Check with you local, friendly tax professional for more details.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A. He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida.

Contact us toll free at (877) 771-1131 or by email to info@goodattorneysatlaw.com.

So You Want to Remove a Federal Tax Lien

The IRS routinely issues federal tax liens against people who have unpaid tax debts.

Federal Tax Lien
Federal Tax Lien

This tax lien, in real life, is actually paperwork that the IRS files with your local government. That paperwork lets the public know that you owe the IRS, and it has a right to your property. This claim attaches to real property (land, houses, and other buildings) and personal property (cars, TVs, and furniture). Under a federal tax lien, the profits of any sale of your property must go towards paying off your tax debt. A tax lien also makes it difficult to borrow and can seriously damage your credit.

Anyone who has a federal tax lien naturally wants to get rid of it. But how is that done? Fortunately, there are a number of options to remove a tax lien. It’s important to understand the problem, however, before getting to the solution.

How a federal tax lien happens:

The IRS first assesses your tax liability. This is fancy language for the IRS figuring out how much you owe them, including interest and penalties. It can occur whether or not you’ve filed your tax returns. Once your tax liability is calculated, the IRS will then send a bill. This bill states the amount you owe and a demand for payment. The IRS does not take kindly to any refusal or neglect in answering its demand. A failure to pay inevitably ends up with the IRS filing a tax lien.

A tax lien is NOT a tax levy:

A tax lien is a matter of public record. It makes everyone aware that you owe the IRS and that profits from the sale of your property must go towards paying off your tax debt. This lien gives the IRS the power to block the sale of your home if the profits are not enough to pay off the mortgage and the lien in full. A tax levy, on the other hand, means the IRS is coming to take your property to satisfy an unpaid tax debt. The IRS can seize your home or car and sell it when it has issued a tax levy.

There are three primary ways to deal with a federal tax lien:

1. Prevent a federal tax lien.

This is the best option and is easier than you may think. After the IRS sends you a bill for your tax debt, but before it files a tax lien, there is a window of opportunity. Anyone who gets a bill from the IRS with a huge number attached probably thinks their battleship is sunk. There are, however, a number of ways to get back into the IRS’ good graces regardless of your financial situation with the Fresh Start Program. If you’re short on cash, you can agree to pay your tax debt off over several years or even pay off an amount less than you owe. You can also request that the IRS wait to take action against you because your financial situation is so bad. If you’re on firmer financial footing, you can make an offer to the IRS. This is bargain between you and the IRS to pay less than what you owe in exchange for the IRS forgiving the balance. Refer to this article for details on how to settle a tax debt.

2. Release of federal tax lien.

A release of your federal tax lien means the IRS has updated the public record and no longer has a right to your property. The original tax lien is still public record, however, and can cause credit problems. You can pay off the tax debt in full to get a release, but there are other ways to obtain it without this nuclear financial option. Under the IRS’ Fresh Start Program, just getting the balance under $25,000 and entering into a payment agreement may be a way out. You can also try to get the IRS to agree that it is in their best interest to release the lien so you can pay the tax debt. The IRS may agree to discharge certain property from the tax lien so you can sell it then pay them (see IRS Publication 783). The IRS may also agree to subordinate its claim (a complex area of law requiring professional assistance) (see IRS Publication 784).

The IRS releases a tax lien 30 days after you make suitable arrangements.

3. Withdrawal of federal tax lien.

A withdrawal of your federal tax lien means the IRS releases the lien and removes the public record. This usually occurs when the IRS filed the tax lien in error and you prove it to them. The Fresh Start Program, under certain criteria, also makes a withdrawal possible after the IRS releases your tax lien.

The new IRS policies give you many options to remove a tax lien. Smart choices and knowing these options can make the process of removing a tax lien much less painful than it was just a few years ago.

Feel free to ask questions about your specific situation.

 

Ari Good, Esq.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A. Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993. He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida. Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.

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