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Tax returns of Donald Trump

The tax returns of Donald Trump have been the subject of controversy for the past several years, particularly over their not having been made public despite his political career.

Before Trump announced his candidacy for president, he repeatedly promised to release his tax returns, making such pledges in 2011, 2014 ("absolutely") and 2015.[1][2] During his presidential campaign, Trump first said he would release his returns after they were "worked on.”[3] Then Trump claimed that, because the returns were being audited, he could not make them public, but would do so. No law actually prevents tax returns from being released due to an audit, as emphasized by the Commissioner of Internal Revenue.[4][5] Trump later said that voters were not interested in his returns; that "there's nothing to learn from them"; and that his tax rate is "none of your business".[2]

Since Trump's election, he has refused requests to release the returns, making him one of the few presidents in recent times to not reveal their tax returns. Trump was the first major party nominee since 1976 not to make his tax returns public. Several states have proposed bills that would require presidential candidates to release their tax returns in order to be listed on the 2020 ballot; such a bill was passed by the California Legislature and signed by Democratic Gov. Gavin Newsom.[6]

The Ways and Means Committee of the U.S. House of Representatives made a formal request to the Internal Revenue Service (IRS), and later issued a subpoena to the IRS, for six years of Trump's returns, as part of an effort by the committee to evaluate "the extent to which the I.R.S. audits and enforces the federal tax laws against a president."[7] Treasury Secretary Steven Mnuchin defied the subpoena.[8][9][10][11] Upon the Trump administration's refusal to turn over the documents, the Ways and Means Committee filed a suit to enforce the subpoena.[12][13] That case is pending.[14] A draft IRS legal memo, written in fall 2018 and reported in May 2019, concluded that the IRS must provide the requested tax returns to Congress unless Trump invokes executive privilege, contradicting the administration's justification for defying the earlier subpoena.[15]

Separately, the House Oversight Committee issued a subpoena to Trump's accounting firm for tax records and other records, as part of the committee's investigation into (1) whether Trump "may have engaged in illegal conduct before and during his tenure in office"; (2) whether Trump "has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions"; (3) whether Trump was complying with the Constitution's Foreign Emoluments Clause and Domestic Emoluments Clause; and (4) whether Trump "has accurately reported his finances to the Office of Government Ethics and other federal entities."[16] Trump sued to block the subpoena; the U.S. District Court for the District of Columbia, and later the U.S. Court of Appeals for the District of Columbia, rejected Trump's position and have held that the subpoena must be complied with.[17][18][19]

In late August 2019, the Office of the New York County District Attorney issued a subpoena to Trump seeking eight years of his personal and corporate tax returns, as part of state prosecutors' investigation into hush-money payments made during the 2016 presidential election campaign.[20] Trump sought to quash the subpoena, contending that a sitting president enjoys "absolute immunity from criminal process of any kind."[20] In October 2019, Judge Victor Marrero of the U.S. District Court for the Southern District of New York rejected Trump's effort to prevent his tax returns from being turned over to the New York grand jury, and ordered Trump to comply with a subpoena. In a 75-page opinion, the court called Trump's contention an overreach of executive power that is "repugnant to the nation's governmental structure and constitutional values."[20][21] The U.S. Court of Appeals for the Second Circuit upheld the lower court's ruling in November 2019, rejecting Trump's claim that presidents are immune from state grand jury subpoenas.[22][23]

Separately, a New York state law was enacted in July 2019, authorizing New York state tax officials to release state tax returns, including Trump's, for any "specified and legitimate legislative purpose" to the House Ways and Means Committee and three other congressional committees.[24] Trump sued the State and the House Ways and Means Committee fifteen days later to block release of the tax returns.[25] In November 2019, Trump's suit was dismissed on jurisdictional grounds.[26]

BackgroundEdit

The IRS has stated that nothing prevents an individual from releasing their tax returns; an audit cannot stop the tax return release, and several former leaders of IRS have said that audits are a poor reason to justify not releasing tax returns. In any case, Trump has the ability to put on hold a current audit. Before Trump's election, every elected president from Richard Nixon onward has released their tax returns annually. While president, Nixon himself released his tax returns despite them being under audit. Also, all major presidential nominees from 1976 onward released their tax returns.[27]

Tax figures from 1985 through 1994Edit

Trump lost $1.17 billion between 1985 and 1994 according to 10 years of Trump's tax information obtained by the New York Times, with the amount more than "nearly any other individual American taxpayer" during that period. Although Trump has acknowledged the tax-advantaged nature of the real estate business due to large depreciation write-offs to generate losses and reduce tax liabilities, the Times reported "depreciation cannot account for the hundreds of millions of dollars in losses."[28][29][30] Due to losing more than $500 million in combined losses, section 172 of the Omnibus Budget Reconciliation Act of 1993 gave Trump $915.7 million in tax exemption, which he used to pay off 8 years of taxes.[31][32][33]

Leaked returns of 1995 and 2005Edit

Parts of Trump's 1995 and 2005 tax returns have been leaked.[34][35]

In October 2016, The New York Times published some tax documents from 1995. The New York Times reported that the Times had been given three pages of certain state tax returns for Trump for the year 1995. The materials indicated that Trump incurred a $916 million net operating loss which, for Federal income tax purposes, could have prevented Trump from owing any Federal income taxes for up to 18 years.[36] Marc Kasowitz of Kasowitz, Benson, Torres & Friedman wrote to the Times stating, according to one report, that "the publication of Trump's tax records was illegal because Trump had not authorized their disclosure ... [and] threatening 'prompt initiation of appropriate legal action.'"[37]

Trump claimed on his tax returns that he lost money, but did not recognize it in the form of canceled debts. Trump might have performed a stock-for-debt swap. This would have allowed Trump to avoid paying income taxes for at least 18 years. An audit of Trump's tax returns for 2002 through 2008 was "closed administratively by agreement with the I.R.S. without assessment or payment, on a net basis, of any deficiency." Tax attorneys believe the government may have reduced what Trump was able to claim as a loss without requiring him to pay any additional taxes.[38][39] It is unknown whether the I.R.S. challenged Trump's use of the swaps because he has not released his tax returns. Trump's lawyers advised against Trump using the equity for debt swap, as they believed it to be potentially illegal.[40]

On March 14, 2017, the first two pages of Trump's 2005 federal income tax returns were leaked to Rachel Maddow and shown on MSNBC. The document states that Trump had a gross adjusted income of $150 million and paid $38 million in federal taxes. The White House confirmed the authenticity of these documents and claimed: "Despite this substantial income figure and tax paid, it is totally illegal to steal and publish tax returns."[41][42].

Before his presidencyEdit

In 1999, while Trump was considering whether to run for president under the Reform Party, he said "probably wouldn't have a problem with" releasing his tax returns if he ran.[43]

In April 2011, Trump said that when President Barack Obama produces "his birth certificate ... I’d love to give my tax returns". Obama's birth certificate was released a week later, resulting in Trump saying his tax returns would be released "at the appropriate time".[1]

In 2012, Trump implored for Republican presidential candidate Mitt Romney's tax returns to be released on April 1, which "historically is the time that everybody gives them".[27] That year, Trump also said that not seeing a presidential candidate's tax returns would lead people to think there was "almost, like, something wrong. What's wrong?"[44]

According to Trump's former political adviser Sam Nunberg and another former Trump adviser, in 2013 and 2014, Trump had considered the possibility of releasing his tax returns as part of a presidential campaign, believing that showing how little he paid in taxes would make him appear to be a savvy businessman.[45] Nunberg said by November 2014, he had persuaded Trump to reverse course and withhold his tax returns, as Trump decided that he "wanted to look rich rather than smart."[45]

In May 2014, Trump said in an interview: "If I decide to run for office, I’ll produce my tax returns, absolutely and I would love to do that."[1]

In February 2015, Trump said that if he ran for the presidency: "I would release tax returns".[1] On another occasion that month, he declared: "I have no objection to certainly showing tax returns".[46]

Also in February 2015, Trump warned: "I will tell you upfront ... I want to pay as little taxes as I can as a private person".[1] In May 2016, Trump voiced similar sentiments, stating he tries "very hard to pay as little tax as possible". However, Trump has in 2015 criticized corporate executives and "hedge fund guys" for paying zero or negligible taxes. He also alleged in 2011 and 2012 that half of all Americans do not pay income taxes, stating: "it's a problem", while noting "crippling" government debt. Trump also in 2012 criticized President Barack Obama for "only" paying a tax rate of around 20%.[27]

Trump announced his candidacy for President in June 2015.[47]

In January 2016, Trump was asked by Chuck Todd if he would release his tax returns. Trump answered: "we'll be working that over in the next period of time, Chuck. Absolutely. [...] at the appropriate time, you'll be very satisfied."[3]

In February 2016, Trump said that he would release his tax returns "[p]robably over the next few months. They’re being worked on now."[3]

Also in February 2016, Trump said that he could not release his tax returns because he was under audit.[48] Trump has elaborated that he has been audited for a consecutive "twelve years or something like that."[48] In 2016, Trump's tax attorneys have stated that Trump has been under audit since 2002. However, in 2011, 2014, and 2015, Trump made offers to release his tax returns, presumably while he was still under audit.[1]

The IRS commissioner at the time, John Koskinen, said that an IRS audit does not prevent the taxpayer from releasing tax returns. Koskinen also said that it "would be rare for anyone to be audited every year", and that if a past audit revealed no problems, "it’s a number of years — two or three at least" before the IRS would conduct an audit again.[48][48][49]

There is no requirement that presidential candidates release their tax returns but candidates are legally free to do so even when under audit.[50][51] Tax lawyers differ as to whether releasing tax returns is legally advisable for someone like Trump who has stated he is under audit.[51][52] According to NPR, tax experts, such as New York University Law School professor Daniel Shaviro, say that "Trump's lawyers may advise him not to release the returns for legal strategy purposes."[53] In contrast, economist Paul Krugman argued that Trump should be more willing to reveal his tax information if he were already under audit, as the reveal might have triggered an audit if there was not one.[54]

In May 2016, Trump said that he did not plan to release his tax returns before the November 2016 election;[55] the tax returns were not released.[56] Trump also said in May 2016 that "there's nothing to learn from" his tax returns,[55] and said on ABC News that his tax rate is "none of your business".[2]

Trump was criticized for his refusal to release tax information. Former Republican presidential candidate Mitt Romney said, "It is disqualifying for a modern-day presidential nominee to refuse to release tax returns to the voters." Romney speculated, "There is only one logical explanation for Mr. Trump's refusal to release his returns: there is a bombshell in them."[57] John Fund of the National Review said that Republican convention delegates should abstain from voting for Trump if he does not release the information, fearing that the returns could contain an electoral "time bomb".[58]

During the 2016 United States presidential debates, rival presidential candidate Hillary Clinton criticized Trump, saying that only "a couple of years" of Trump's tax returns were publicly available, "and they showed he didn't pay any federal income tax". Trump directly responded: "That makes me smart." Clinton went on to suggest that Trump might not have "paid any federal income tax for a lot of years"; this resulted in Trump saying that the taxes he paid "would be squandered" by the government.[59]

During his presidencyEdit

Trump has continued to withhold his tax returns even into his presidency as of September 2019.[56]

In May 2017, Trump said that he "might" release his tax returns only after he had stepped down as President. This was in spite of his previous commitment made during his campaign to release his tax returns once they were not under audit.[60]

Tax March protestsEdit

In January 2017, an online petition on the "We the People" portion of the White House's website calling for the release of Trump's tax returns was set up.[61] The petition gained over 1 million signatures, becoming the most signed petition on the White House's website. However, the White House gave no official response to the petition as of April 2017.[62] Trump spokesperson Kellyanne Conway then said that "The White House response is that he’s not going to release the tax returns" and that "people didn't care" about Trump's tax returns.[63] In response, Jennifer Taub and others planned the Tax March on April 15, 2017 (Tax Day) to demand that Trump release his tax returns;[64] tens of thousands of people marched in New York and dozens of cities across the country.[65][66]

Congressional requests and subpoenas for Trump's tax returnsEdit

After winning control of the House in the 2018 elections, House Democrats signaled their intent to use their new power to demand Trump's tax returns in the new Congress, which convened in January 2019.[67][68][69] In April 2019, the chairman of the United States House Committee on Ways and Means, Congressman Richard Neal, formally requested from the IRS six years of Trump's returns.[70][71] The last time a sitting president's tax information was requested was 45 years ago.[70] The request was made on April 3 via a letter to IRS Commissioner Charles Rettig. It requested both Trump's business and personal returns for the years 2013 through 2018. The deadline he set was April 10, seven days later.[70] After the first deadline was not met, Neal again wrote to Rettig on April 13, setting a second deadline of April 23, 2019, and writing that a failure to meet the deadline would be "interpreted as a denial".[72]

Under a 1924 federal tax law, § 6103 of title 26 of the United States Code, Congress may request copies of anyone's tax returns.[73][74][75][76] The treasury secretary is legally obliged to provide the tax returns, and there is no apparent legal mechanism to deny Congress's request.[77] On April 5, 2019, Trump's personal lawyer William Consovoy wrote a letter to the United States Department of the Treasury (the parent agency of the IRS), claiming that the request for Trump's tax information is "not consistent with governing law" and that Congress is trying to violate Trump's First Amendment rights.[78]

House committees issue formal subpoenas for tax recordsEdit

On April 15, 2019, the chairman of the House Committee on Oversight and Reform, Representative Elijah Cummings, issued a subpoena to the accounting firm Mazars USA, LLP requesting tax records and other "financial documents concerning the President and his companies covering years both before and during his presidency."[16] Cummings identified four areas that the committee aimed to investigate through the subpoena: (1) whether Trump "may have engaged in illegal conduct before and during his tenure in office"; (2) whether Trump "has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions"; (3) whether Trump was complying with the Constitution's Foreign Emoluments Clause and Domestic Emoluments Clause; and (4) whether Trump "has accurately reported his finances to the Office of Government Ethics and other federal entities."[16]

On May 10, 2019, Neal, the chairman of the House Ways and Means Committee, issued a separate subpoena to both the Treasury Department and Internal Revenue Service to hand over six years of President Trump's personal and business tax returns and grant access by May 17.[7] Neal stated that the committee aimed to obtain the tax records to evaluate "the extent to which the I.R.S. audits and enforces the federal tax laws against a president."[7]

Trump administration defies subpoenasEdit

The Trump administration refused to comply with the subpoenas.[79][80] On May 6, 2019, after weeks of delay, Treasury Secretary Steven Mnuchin sent a letter to House Ways and Means Committee chair Neal, asserting that the subpoena lacked "a legitimate legislative purpose" and that "the department may not lawfully fulfill the committee's request," although the IRS released president Richard Nixon's tax returns the same day Congress requested them in 1973.[80] The Trump's administration's Justice Department, through a memo written by Office of Legal Counsel head Steven Engel, issued an opinion supporting Mnuchin's refusal to release Trump's tax returns.[81] This triggered a legal battle between the administration and Congress.[82][83][84][85] Neal criticized the administration's position, saying that its objections "lack merit" and that "judicial precedent commands that none of the concerns raised can legitimately be used to deny the committee’s request."[86]

On April 7, 2019, Mick Mulvaney, Trump's acting White House Chief of Staff, said that Trump's tax returns will "never" be released.[87][88] Trump and Mulvaney have argued that voters have no interest in Trump's tax returns and that the issue was "litigated" when Trump was elected to the presidency.[87][89]

On May 7, 2019, The New York Times revealed that it had acquired information about Trump's tax returns showing over one billion dollars in business losses with a decade in the red.[28][90]

In April 2019, a Trump adviser speaking on condition of anonymity told Fox News that Trump has repeatedly questioned his aides about the status of the congressional request, and also asked about the "loyalty" of top IRS officials.[89] Trump appointee Michael J. Desmond, who as Chief Counsel of the IRS and Assistant General Counsel in the Department of the Treasury is responsible for giving legal advice to the IRS Commissioner, previously served as a tax advisor to the Trump Organization and also worked alongside two other longtime tax advisors to the Trump Organization. According to the New York Times, on February 5, 2019, Trump asked Senate Majority Leader Mitch McConnell to speed up Desmond's confirmation and indicating that confirming Desmond was a higher priority to him than confirming William Barr for Attorney General.[91]

Trump and his White House Press Secretary, Sarah Sanders, said that Trump would not release his tax returns while they are under audit,[77] although nothing precludes a person from releasing tax returns that are under audit,[77] a fact reaffirmed by IRS Commissioner Rettig.[92] Sanders also opined that Congress is not "smart enough" to examine Trump's tax returns,[93] although ten members of Congress are accountants, including three Certified Public Accountants.[94]

On April 10, Trump made a partially false statement that "There’s no law whatsoever" that requires him to provide Congress his tax returns. While there is no law requiring Trump to publicly release his tax returns, federal law of IRS Code section 6103(f) does require Trump's (or anyone else's) tax returns to be given to Congress if they request it.[95][96]

Trump's efforts in court to block House subpoenasEdit

House Ways and Means Committee's suit to enforce subpoena to IRSEdit

On May 17, 2019, Treasury Secretary Mnuchin again refused to hand over the records.[79] On July 2, 2019, the House Committee on Ways and Means sued Mnuchin and IRS Commissioner Rettig to enforce the subpoena and obtain six years of Trump's tax returns.[12][13] The suit is pending before U.S. District Judge Trevor McFadden, a Trump appointee, in the U.S. District Court for the District of Columbia.[14] In September 2019, a bipartisan group of six former general counsels to the House of Representatives filed an amicus brief in the case, urging the court to reject Trump's claims that the House lacks standing to bring the case.[14]

Trump's efforts to block House Oversight Committee subpoena to accounting firmEdit

On May 20, 2019, U.S. District Judge Amit Mehta of the U.S. District Court for the District of Columbia, refused a request by Trump's attorneys to quash the subpoena from the House Oversight Committee directed to Trump's accounting firm, Mazars USA LLP, ruling that the subpoena must be complied with.[97][17] The district court held that the subpoena was well within Congress's broad investigative powers and rejected Trump's claim that the subpoena to Mazars was "a usurpation of an exclusively executive or judicial function."[17]

Trump then appealed to the U.S. Court of Appeals for the District of Columbia, which heard oral argument on July 12, 2019, and then issued a ruling against Trump on October 11, 2019. In its 2–1 ruling, the court of appeals upheld the lower court's ruling, holding that "contrary to the President's arguments, the Committee possesses authority under both the House Rules and the Constitution to issue the subpoena" for eight years of tax returns to Mazars, and that Mazars therefore "must comply" with the subpoena.[18][19] The 66-page majority opinion was written by Judge David S. Tatel, joined by Patricia A. Millett; Judge Neomi Rao, a Trump appointee, dissented.[18] Trump's motion for rehearing en banc (i.e., before the entire D.C. Circuit) was denied on November 13, 2019, on an 8–3 vote.[98][99] The ruling was the second appeals court decision within ten days against Trump regarding release of his tax returns; Trump attorney Jay Sekulow said that Trump would seek to appeal both decisions to the Supreme Court.[98] On November 18, Supreme Court chief justice John Roberts issued a temporary stay preventing the appeals court ruling from taking effect so the Supreme Court could consider whether to hear the case.[100]

California primary election lawEdit

On July 30, 2019, California governor Gavin Newsom signed a law, effective immediately, requiring that all presidential candidates release five years of tax returns in order to be eligible for the state primary.[101][102] In August 2019, Trump sued the State of California, seeking to block implementation of the law (SB 27), asserting that the law is unconstitutional.[103] On September 19, 2019, U.S. District Judge Morrison C. England issued a temporary injunction blocking the law from taking effect.[103] California is appealing; California Secretary of State Alex Padilla said: "Our elected leaders have a legal and moral obligation to be transparent with voters about potential conflicts of interest. This law is fundamental to preserving and protecting American democracy."[104]

California's Supreme Court ruled that SB 27 could not come into effect.[105] According to The Sacramento Bee, this means that "President Donald Trump won’t have to release his tax returns to get on California’s 2020 primary ballot".[105]

New York TRUST ActEdit

In May 2019, the New York State Senate passed the TRUST Act which would amend state law to permit the commissioner of the state Department of Taxation and Finance to release any state tax return requested by the leaders of the House Ways and Means Committee, the Senate Finance Committee or the Joint Committee on Taxation for any "specific and legitimate legislative purpose."[106][107] The New York State Assembly approved the bill on May 22, sending it to the governor.[108] On July 8 Gov. Andrew M. Cuomo signed the bill.[24]

Trump sued the State and the House Ways and Means Committee fifteen days later to block release of the tax returns.[25] In November 2019, Trump's suit was dismissed on jurisdictional grounds.[26]

Manhattan district attorney subpoenaEdit

In late August 2019,[20] soon after opening an investigation into hush-money payments to Stormy Daniels, the Manhattan district attorney's office issued a subpoena to Trump's accounting firm, Mazars USA, for eight years of Trump's individual tax returns and corporate tax records for the Trump Organization.[20][109] The existence of the subpoena was first reported by the New York Times in September 2019.[109]

Trump sought to quash the subpoena in federal court, contending that a sitting president enjoys "absolute immunity from criminal process of any kind."[20] In court filings in September 2019, New York prosecutors rejected Trump's claim that he has "sweeping immunity" from a criminal probe while he is in office, writing that Trump was "seeking to invent and enforce a new presidential 'tax return privilege,' on the theory that disclosing information in a tax return will necessarily reveal information that will somehow impede the functioning of a President, sufficiently to meet the test of irreparable harm."[110][111]

On October 7, 2019, Judge Victor Marrero of the U.S. District Court for the Southern District of New York rejected Trump's effort to prevent his tax returns from being turned over to the New York grand jury, and ordered Trump to comply with a subpoena. In a 75-page opinion, the court called Trump's contention an overreach of executive power that is "repugnant to the nation's governmental structure and constitutional values."[20][21] Enforcement of the subpoena is temporarily delayed pending consideration by the U.S. Court of Appeals for the Second Circuit.[20][112]

Oral argument before the Second Circuit took place on October 23, 2019, before Chief Judge Robert A. Katzmann, Judge Denny Chin, and Judge Christopher F. Droney. Trump's private lawyer, William S. Consovoy, argued that a president enjoyed absolute "presidential immunity" from all investigation and criminal process while in office; responding to a hypothetical from the court, Consovoy said the president should be shielded even if he hypothetically committed murder on Fifth Avenue in Manhattan.[113][114][115] In response, counsel for the Manhattan District Attorney's Office told the court that "there is no such thing as presidential immunity for tax returns" and noted that tax returns are frequently subpoenaed in financial investigations.[113]

On November 4, 2019, a three-judge panel of the Second Circuit unanimously ruled that Mazars must comply with the subpoena and hand over eight years of Trump's tax returns.[22][23] The court held that the president is not immune from "the enforcement of a state grand jury subpoena directing a third party to produce non-privileged material, even when the subject matter under investigation pertains to the President" and that a state grand jury may permissibly issue subpoenas "in aid of its investigation of potential crimes committed by persons within its jurisdiction, even if that investigation may in some way implicate the President."[23] Noting that "the President concedes that his immunity lasts only so long as he holds office and that he could therefore be prosecuted after leaving office," the Second Circuit ruled that there "is no obvious reason why a state could not begin to investigate a President during his term and, with the information secured during that search, ultimately determine to prosecute him after he leaves office."[23] Trump's lawyer Jay Sekulow said that Trump would seek to bring the case to the Supreme Court.[22]

Whistleblower complaint regarding interference in mandatory IRS audit processEdit

On July 29, 2019, a career IRS official filed a whistleblower complaint with the House Ways and Means Committee, Senate Finance Committee, and Treasury Inspector General for Tax Administration, stating that at least one Treasury Department official had inappropriately interfered in the audit process for the tax returns of the president and vice president,[116] which takes place annually in accordance with IRS policy.[117] The possibility that political appointees interfered with audits conducted by career civil servants alarmed former IRS officials and legal experts.[116] Due to stringent laws regarding disclosure of tax information, the details of the complaint have not been made public.[116] However, Representative Richard E. Neal, the Democratic chair of the House Ways and Means Committee, said in September 2019 that he was consulting legal counsel on whether the whistleblower's complaint could be publicly released.[118]

The whistleblower's report was referred to by Neal and other House Democrats in the federal lawsuit regarding Trump's refusal to comply with a House Ways and Means Committee subpoena for the returns; in a filing, Neal wrote that the whistleblower's complaint presents credible evidence of "potential 'inappropriate efforts to influence' the mandatory audit program" and raises "serious and urgent concerns," thereby bolsters the committee's case for obtaining the tax returns.[119]

See alsoEdit

ReferencesEdit

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