Laws, Regulations & Annotations

Business Taxes Law Guide – Revision 2010
 

Underground Storage Tank Maintenance Fee Law

Revenue and Taxation Code

Chapter 3. Determinations

Chapter 3. Determinations

Article 1. Reports and Payments

50109. Notice of determination. [Repealed by Stats. 1990, Ch. 1366, in effect September 27, 1990.]

50109. Quarterly returns. The fee collected under Section 50108 is due and payable to the board quarterly on or before the 25th day of the month following the end of each calendar quarter. Each fee payer, on or before the 25th day of the month following the quarterly period for which the fee is due, shall prepare a fee return for the preceding quarterly period, in the form as prescribed by the board, which may include, but not be limited to, electronic media showing the total number of gallons of petroleum placed into underground storage tanks which he or she owns during the period, the amount of the fee for the period covered by the return, and any other information that the board determines to be necessary. The fee payer shall deliver the return, together with a remittance of the amount of the fee due, to the office of the board on or before the 25th day of the month following the quarterly period for which the fee is due. Returns shall be authenticated in a form or pursuant to methods as may be prescribed by the board.

History.—Added by Stats. 1990, Ch. 1366, in effect September 27, 1990. Stats. 2002, Ch. 459 (AB 1936), in effect January 1, 2003, added "which may include, but not be limited to, electronic media" after "by the board," in the second sentence, and added the fourth sentence.

50110. Fee; due and payable. [Repealed by Stats. 1990, Ch. 1366, in effect September 27, 1990.]

50110. Returns; other than periods specified. The board, if it determines it to be necessary in order to facilitate the administration of this part, may require returns and payments specified under Section 50109 to be made for periods other than quarterly.

History.—Added by Stats. 1990, Ch. 1366, in effect September 27, 1990.

50111. Penalty for late payment. [Repealed by Stats. 1990, Ch. 1366, in effect September 27, 1990.]

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50111. Extension of time. (a) The board for a good cause may extend, for up to one month, the time period within which a person is required to submit a report or pay a sum of money under this part. The extension may be granted at any time if a request is filed with the board within, or prior to the commencement of, the period for which the extension may be granted.

(b) Any person to whom an extension is granted shall pay, in addition to the fee, interest at the modified adjusted rate per month, or fraction thereof, established pursuant to Section 6591.5, from the date on which the fee would have been due without the extension until the date of payment.

History.—Added by Stats. 1990, Ch. 1366, in effect September 27, 1990.

50112. Excusable delay. [Repealed by Stats. 1990, Ch. 1366, in effect September 27, 1990.]

50112. Penalties for late payment. (a) Any feepayer who fails to pay any fee to the state or any amount of fee required to be collected and paid to the state, except amounts of determinations made by the board under Article 2 (commencing with Section 50113) within the time required shall pay a penalty of 10 percent of the amount of the fee, together with interest on that fee at the modified adjusted rate per month, or fraction thereof, established pursuant to Section 6591.5, from the date on which the fee became due and payable until the date of payment.

(b) Any feepayer who fails to file a return in accordance with the due date set forth in Section 50109 or the due date established by the board in accordance with Section 50110, shall pay a penalty of 10 percent of the amount of the fee with respect to the period for which the return is required.

(c) The penalties imposed by this section shall be limited to a maximum of 10 percent of the fee for which the return is required for any one return.

History.—Added by Stats. 1990, Ch. 1366, in effect September 27, 1990. Stats. 2000, Ch. 923 (AB 2894), in effect January 1, 2001, substituted "Any feepayer who fails to pay any fee . . . due and payable until the date of payment" for "If the fee is not paid to the board within the time prescribed for the payment of the fee, a penalty of 10 percent of the amount of the fee shall be added to the amount due" in subdivision (a); added subdivisions (b) and (c).

50112.1. Interest. [Repealed by Stats. 2000, Ch. 923 (AB 2894), in effect January 1, 2001.]

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50112.2. Reasonable cause for delay; penalty relief. (a) If the board finds that a person's failure to make a timely report or payment is due to reasonable cause and circumstances beyond the person's control, and occurred notwithstanding the exercise of ordinary care and the absence of willful neglect, the person may be relieved of the penalties provided by Sections 50112, 50112.7, and 50119.

(b) Except as provided in subdivision (c), any person seeking to be relieved of the penalty shall file with the board a statement, under penalty of perjury, setting forth the facts upon which he or she bases his or her claim for relief.

(c) The board shall establish criteria that provide for efficient resolution of requests for relief pursuant to this section.

History.—Added by Stats. 1990, Ch. 1366, in effect September 27, 1990. Stats. 1999, Ch. 929 (AB 1638), in effect January 1, 2000, substituted "Sections 50112 and 50119" for "Section 50112" after "penalty provided by" in subdivision (a) and deleted "provided by Section 50112" after "of the penalty" in subdivision (b). Stats. 2000, Ch. 1052 (AB 2898), in effect January 1, 2001, substituted "penalties" for "penalty" after "may be relieved of the" and added "50112.7" after "Sections 50112," in subdivision (a); substituted "Except as provided in subdivision (c), any" for "Any" before "person seeking to be relieved" in subdivision (b); and added subdivision (c).

50112.3. Relief from interest; disaster. (a) If the board finds that a person's failure to make a timely report or payment was due to a disaster, and occurred notwithstanding the exercise of ordinary care and the absence of willful neglect, the person may be relieved of the interest provided by Sections 50111, 50112, and 50112.7.

(b) Any person seeking to be relieved of the interest provided by Sections 50111, 50112, and 50112.7 shall file with the board a statement under penalty of perjury setting forth the facts upon which he or she bases his or her claim for relief.

History.—Added by Stats. 1990, Ch. 1366, in effect September 27, 1990. Stats. 2000, Ch. 923 (AB 2984), in effect January 1, 2001, substituted "50112, and 50112.7" for "and 50112.1" after "interest provided by Sections" in subdivision (a); substituted "50111, 50112, and 50112.7" for "50111 and 50112.1" after "interest provided by Sections" in subdivision (b).

50112.4. Relief of interest. (a) The board, in its discretion, may relieve all or any part of the interest imposed on a person by this part where the failure to pay fees is due in whole or in part to an unreasonable error or delay by an employee of the board acting in his or her official capacity.

(b) For purposes of this section, an error or delay shall be deemed to have occurred only if no significant aspect of the error or delay is attributable to an act of, or a failure to act by, the feepayer.

(c) Any person seeking relief under this section shall file with the board a statement under penalty of perjury setting forth the facts on which the claim for relief is based and any other information which the board may require.

(d) The board may grant relief only for interest imposed on fee liabilities that arise during taxable periods commencing on or after January 1, 2000.

History.—Added by Stats. 1999, Ch. 929 (AB 1638), in effect January 1, 2000. Stats. 2000, Ch. 923 (AB 2894), in effect January 1, 2001, deleted "or" after "fee was not made timely" in subdivision (a); and substituted "feepayer" for "fee payer" after "or failure to act by," in subdivision (b). Stats. 2001, Ch. 251 (AB 1123), substituted "this part" for "Section 50112.1 and . . . not made timely," in subdivision (a), effective January 1, 2002.

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50112.5. Reasonable reliance on written advice; relief of tax, penalty, and interest. (a) If the board finds that a person's failure to make a timely report or payment is due to the person's reasonable reliance on written advice from the board, the person may be relieved of the fees imposed or administered under this part and any penalty or interest added thereto.

(b) For purposes of this section, a person's failure to make a timely report or payment shall be considered to be due to reasonable reliance on written advice from the board, only if the board finds that all of the following conditions are satisfied:

(1) The person requested in writing that the board advise him or her whether a particular activity or transaction is subject to the fee under this part. The specific facts and circumstances of the activity or transaction shall be fully described in the request.

(2) The board responded in writing to the person regarding the written request for advice, stating whether or not the described activity or transaction is subject to the fee, or stating the conditions under which the activity or transaction is subject to the fee.

(3) The liability for fees applied to a particular activity or transaction which occurred before either of the following:

(A) Before the board rescinded or modified the advice so given, by sending written notice to the person of the rescinded or modified advice.

(B) Before a change in statutory or constitutional law, a change in the board's regulations, or a final decision of a court, which renders the board's earlier written advice no longer valid.

(c) Any person seeking relief under this section shall file with the board all of the following:

(1) A copy of the person's written request to the board and a copy of the board's written advice.

(2) A statement under penalty of perjury setting forth the facts on which the claim for relief is based.

(3) Any other information which the board may require.

(d) Only the person making the written request shall be entitled to rely on the board's written advice to that person.

History.—Added by Stats. 1990, Ch. 987, in effect January 1, 1991.

50112.6. Relief of spouse. (a) Under regulations prescribed by the board, if:

(1) A fee liability under this part was understated by a failure to file a return required to be filed under this part, by the omission of an amount properly includable therein, or by erroneous deductions or credits claimed on a return, and the understatement of the fee liability is attributable to one spouse; or any amount of the fee reported on a return was unpaid and the nonpayment of the reported fee liability is attributable to one spouse.

(2) The other spouse establishes that he or she did not know of, and had no reason to know of, that understatement or nonpayment.

(3) Taking into account whether or not the other spouse significantly benefited directly or indirectly from the understatement or the nonpayment and taking into account all other facts and circumstances, it is inequitable to hold the other spouse liable for the deficiency in the fee attributable to that understatement or nonpayment, then the other spouse shall be relieved of liability for the fee (including interest, penalties, and other amounts) to the extent that the liability is attributable to that understatement or nonpayment of the fee.

(b) For purposes of this section, the determination of the spouse to whom items of understatement or nonpayment are attributable shall be made without regard to community property laws.

(c) This section shall apply to all calendar quarters subject to the provisions of this part, but shall not apply to any calendar quarter that is more than five years from the final date on the board-issued determination, five years from the return due date for nonpayment on a return, or one year from the first contact with the spouse making a claim under this section; or that has been closed by res judicata, whichever is later.

(d) For purposes of paragraph (2) of subdivision (a), "reason to know" means whether or not a reasonably prudent person would have had reason to know of the understatement or nonpayment.

(e) For purposes of this section, with respect to a failure to file a return or an omission of an item from the return, "attributable to one spouse" may be determined by whether a spouse rendered substantial service as an owner of an underground storage tank containing petroleum that is subject to fees imposed by this part to which the understatement is attributable. If neither spouse rendered substantial services as an owner, then the attribution of applicable items of understatement shall be treated as community property. An erroneous deduction or credit shall be attributable to the spouse who caused that deduction or credit to be entered on the return.

(f) Under procedures prescribed by the board, if, taking into account all the facts and circumstances, it is inequitable to hold the other spouse liable for any unpaid tax or any deficiency (or any portion of either) attributable to any item for which relief is not available under subdivision (a), the board may relieve the other spouse of that liability.

(g) For purposes of this section, registered domestic partners, as defined in Section 297 of the Family Code, have the same rights, protections, and benefits as provided by this section, and are subject to the same responsibilities, obligations, and duties as imposed by this section, as are granted to and imposed upon spouses.

(h) The relief provided by this section shall apply retroactively to liabilities arising prior to the effective date of this section.

History.—Added by Stats. 2007, Ch. 342 (AB 1748), in effect January 1, 2008.

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Article 1.1. Payment by Electronic Funds Transfer*

* Stats. 2000, Ch. 923 (AB 2894), in effect January 1, 2001.

50112.7. Electronic funds transfer payments. (a) Any person whose estimated fee liability under this part averages twenty thousand dollars ($20,000) or more per month, as determined by the board pursuant to methods of calculation prescribed by the board, shall remit amounts due by an electronic funds transfer under procedures prescribed by the board.

(b) Any person whose estimated fee liability under this part averages less than twenty thousand dollars ($20,000) per month may elect to remit amounts due by electronic funds transfer with the approval of the board.

(c) Any person remitting amounts due pursuant to subdivision (a) or (b) shall perform electronic funds transfer in compliance with the due dates set forth in Article 1 (commencing with Section 50109). Payment is deemed complete on the date the electronic funds transfer is initiated, if settlement to the state's demand account occurs on or before the banking day following the date the transfer is initiated. If settlement to the state's demand account does not occur on or before the banking day following the date the transfer is initiated, payment is deemed to occur on the date settlement occurs.

(d) Any person remitting fees by electronic funds transfer shall, on or before the due date of the remittance, file a return for the preceding reporting period in the form and manner prescribed by the board. Any person who fails to timely file the required return shall pay a penalty of 10 percent of the amount of fees, with respect to the period for which the return is required.

(e) Any person required to remit fees pursuant to this article who remits those fees by means other than appropriate electronic funds transfer shall pay a penalty of 10 percent of the fees incorrectly remitted.

(f) Any person who fails to pay any fee to the state or any amount of fee required to be paid to the state, except amounts of determinations made by the board under Article 2 (commencing with Section 50113) within the time required shall pay a penalty of 10 percent of the fee or amount of fee, in addition to the fee or amount of fee, plus interest at the modified adjusted rate per month, or fraction thereof, established pursuant to Section 6591.5, from the date on which the fee or the amount of fee required to be paid became due and payable to the state until the date of payment.

(g) In determining whether a person's estimated fee liability averages twenty thousand dollars ($20,000) or more per month, the board may consider returns filed pursuant to this part and any other information in the board's possession.

(h) The penalties imposed by subdivisions (d), (e), and (f) shall be limited to a maximum of 10 percent of the fees due for any one return. Any person remitting fees by electronic funds transfer shall be subject to the penalties under this section and not Section 50112.

(i) The board shall promulgate regulations pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code for purposes of implementing this section.

History.—Stats. 2005, Ch. 519 (AB 1765), in effect October 4, 2005, operative January 1, 2006, deleted the former last sentence of subdivision (b) which provided "The election shall be operative for a minimum of one year."

50112.8. Relief of penalty. If the board finds that a person's failure to make payment by an appropriate electronic funds transfer in accordance with board procedures is due to reasonable cause and circumstances beyond the person's control, and occurred notwithstanding the exercise of ordinary care and in the absence of willful neglect, that person shall be relieved of the penalty provided in subdivision (e) of Section 50112.7. Any person seeking to be relieved of the penalty shall file with the board a statement under penalty of perjury setting forth the facts upon which he or she bases his or her claim for relief.

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50112.9. Definitions. (a) "Electronic funds transfer" means any transfer of funds, other than a transaction originated by check, draft, or similar paper instrument, that is initiated through an electronic terminal, telephonic instrument, or computer or magnetic tape, so as to order, instruct, or authorize a financial institution to debit or credit an account. Electronic funds transfers shall be accomplished by an automated clearinghouse debit, an automated clearinghouse credit, or by Federal Reserve Wire Transfer (Fedwire).

(b) "Automated clearinghouse" means any federal reserve bank, or an organization established in agreement with the National Automated Clearing House Association, that operates as a clearinghouse for transmitting or receiving entries between banks or bank accounts and which authorizes an electronic transfer of funds between these banks or bank accounts.

(c) "Automated clearinghouse debit" means a transaction in which the state, through its designated depository bank, originates an automated clearinghouse transaction debiting the person's bank account and crediting the state's bank account for the amount of the fee. Banking costs incurred for the automated clearinghouse debit transaction shall be paid by the state.

(d) "Automated clearinghouse credit" means an automated clearinghouse transaction in which the person through his or her own bank, originates an entry crediting the state's bank account and debiting his or her own bank account. Banking costs incurred for the automated clearinghouse credit transaction charged to the state shall be paid by the person originating the credit.

(e) "Fedwire transfer" means any transaction originated by a person and utilizing the national electronic payment system to transfer funds through the federal reserve banks, when that person debits his or her own bank account and credits the state's bank account. Electronic funds transfers pursuant to Section 50112.7 may be made by Fedwire only if payment cannot, for good cause, be made according to subdivision (a), and the use of Fedwire is preapproved by the board. Banking costs incurred for the Fedwire transaction charged to the person and to the state shall be paid by the person originating the transaction.

50112.10. Electronic filing. (a) Any return, declaration, statement, or other document required to be made under this part that is filed using electronic media shall be filed and authenticated pursuant to any method or form the board may prescribe.

(b) Notwithstanding any other law, any return, declaration, statement, or other document otherwise required to be signed that is filed by the taxpayer using electronic media in a form as required by the board shall be deemed to be a signed, valid original document, including upon reproduction to paper form by the board.

(c) Electronic media includes, but is not limited to, computer modem, magnetic media, optical disk, facsimile machine, or telephone.

History.—Added by Stats. 2002, Ch. 459 (AB 1936), in effect January 1, 2003.

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Article 2. Deficiency Determinations

50113. Deficiency determination; service of notice. (a) If the board is dissatisfied with the report filed or the amount of fee paid to the board under this part by any fee payer, or if no report has been filed or no payment or payments of the fees have been made to the state by a fee payer, the board may compute and determine the amount to be paid, based upon any information available to it. One or more additional determinations may be made of the amount of fee due for one, or for more than one, period. The amount of fee so determined shall bear interest at the modified rate per month, or fraction thereof, established pursuant to Section 6591.5, from the date the amount of the fee, or any portion thereof, became due and payable until the date of payment. In making a determination, the board may offset overpayments for a period or periods against underpayments for another period or periods and against the interest and penalties on the underpayments.

(b) If any part of the deficiency for which a determination of an additional amount due is made is found to have been occasioned by negligence or intentional disregard of this part or regulations adopted by the board pursuant to this part, a penalty of 10 percent of the amount of that determination shall be added, plus interest as provided in subdivision (a).

(c) If any part of the deficiency for which a determination of an additional amount due is made is found to be occasioned by fraud or an intent to evade this part or regulations adopted pursuant to this part, a penalty of 25 percent of the amount of the determination shall be added, plus interest as provided in subdivision (a).

(d) The board shall give to the fee payer written notice of its determination. The notice shall be placed in a sealed envelope, with postage paid, addressed to the fee payer at the fee payer's address as it appears in the records of the board. The giving of the notice shall be deemed complete at the time of the deposit in a United States Post Office, or a mailbox, subpost office, substation, mail chute, or other facility regularly maintained or provided by the United States Postal Service, without extension of time for any reason. In lieu of mailing, the board may serve notice personally by delivering to the person to be served, and service shall be deemed complete at the time of delivery. The board may make personal service to a corporation by delivering a notice to any person designated in the Code of Civil Procedure to be served for the corporation with a summons and complaint in a civil action.

History.—Stats. 1990, Ch. 1366, in effect September 27, 1990, added subdivision (a), (b), and (c) and "(d)" before "The board shall give".

50113.1. Limitations; deficiency determinations. Except in the case of fraud, intent to evade this part, or rules and regulations adopted pursuant to this part, or failure to make a report or return, every notice of a determination of an additional amount due shall be given within three years after the date when the amount was required to have been paid or the report or return was due, or within three years after the report or return was filed, whichever period expires later. In the case of failure to make a report or return, the notice of determination shall be mailed within eight years after the date the amount of the report or return was due.

History.—Stats. 1993, Ch. 1113, in effect January 1, 1993, added "or return" after "a report" in the first and second sentences; added "or the report . . . expires later" after "been paid"; substituted "report or return" for "fee" after "amount of the".

50113.2. Waiver. If, before the expiration of the time prescribed in Section 50113.1 for the mailing of a notice of deficiency determination, the fee payer has consented in writing to the mailing of the notice after that time, the notice may be mailed at any time prior to the expiration of the period agreed upon. The period agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon.

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Article 3. Redeterminations

50114. Petition for redetermination. Any person from whom an amount is determined to be due under Article 2 (commencing with Section 50113), or any person directly interested, may petition for a redetermination thereof within 30 days after service of a notice of determination on that person. If a petition for redetermination is not filed within the 30-day period, the amount determined to be due becomes final at the expiration of that time period.

History.—Stats. 1990, Ch. 1366, in effect September 27, 1990, substituted "within 30 days after service of a notice of determination on that person" and "within the 30-day period" for "on or before the date specified in Section 50110" and "time period" for "date".

50115. Form and content of petition. Every petition for redetermination shall be in writing and shall state the specific grounds upon which the petition is founded. The petition may be amended to state additional grounds at any time prior to the date on which the board issues its order or decision on the petition for redetermination.

50116. Oral hearing. If a petition for redetermination is filed within the period specified in Section 50114, the board shall reconsider the amount determined to be due, and, if the person has so requested in the person's petition, the board shall grant the person an oral hearing and shall give the person 10 days' notice of the time and place of the hearing. The board may continue the hearing from time to time as may be necessary.

50117. Decrease or increase of determination. The board may decrease or increase the amount of the determination before it becomes final, but the amount may be increased only if a claim for the increase is asserted by the board at or before the hearing.

50118. Finality date of order or decision. The order or decision of the board upon a petition for redetermination shall become final 30 days after service upon the petitioner of the notice of the order or decision.

50119. Due date of determination; penalty. All amounts determined to be due by the board under Article 2 (commencing with Section 50113) are due and payable at the time they become final, and, if not paid when due and payable, a penalty of 10 percent of the amount determined to be due shall be added to the amount due and payable.

History.—Stats. 1990, Ch. 1366, in effect September 27, 1990, substituted "10" for "25".

50120. Service of notice. Any notice required by this article shall be served personally or by mail in the same manner as prescribed for service of notice by Section 50113.

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Article 4. Jeopardy Determinations*

* Article 4 was added by Stats. 1990, Ch. 1366, in effect September 27, 1990.

50120.1. Jeopardy determinations. If the board determines that the collection of any amount of fee will be jeopardized by delay, it shall thereupon make a determination of the amount of fee due, noting that fact upon the determination, and the amount of the fee shall be immediately due and payable. If the amount of the fee, interest, and penalty specified in the jeopardy determination is not paid, or a petition for redetermination is not filed, within 10 days after the service upon the fee payer of a notice of the determination, the determination becomes final, and the delinquency penalty and interest provided in Section 50112 shall attach to the amount of fee specified in the jeopardy determination.

History.—Stats. 2004, Ch. 527 (SB 1881), in effect January 1, 2005, substituted "penalty and interest provided in Section 50112" for "penalty provided in Section 50112 and the interest provided in 50112.1" in the last sentence.

50120.2. Petition for redetermination; security. The fee payer against whom a jeopardy determination is made may file a petition for the redetermination thereof, pursuant to Article 3 (commencing with Section 50114), with the board within 10 days after the service upon the fee payer of notice of the determination, and he or she shall, within the 10-day period, deposit with the board that security which the board determines to be necessary to ensure compliance with this part. The security may be sold by the board at a public sale if it becomes necessary in order to recover any amount due under this part. Notice of the sale may be served upon the person who deposited the security personally or by mail in the same manner as prescribed for service of notice by subdivision (d) of Section 50113. After that sale, the surplus, if any, above the amount due under this part shall be returned to the person who deposited the security.

50120.3. Administrative hearing. (a) In accordance with rules and regulations which the board may adopt, the person against whom a jeopardy determination is made may apply for an administrative hearing for one or more of the following purposes:

(1) To establish that the determination is excessive.

(2) To establish that the sale of property that may be seized after issuance of the jeopardy determination, or any part thereof, shall be delayed pending the administrative hearing because the sale would result in irreparable injury to the person.

(3) To request the release of all or part of the property to the person.

(4) To request a stay of collection activities.

(b) The application shall be filed within 30 days after service of the notice of jeopardy determination and shall be in writing and state the specific factual and legal grounds upon which it is founded. The person shall not be required to post any security in order to file the application and to obtain the hearing. However, if the person does not deposit, within the 10-day period prescribed in Section 50120.2, that security which the board determines to be necessary to ensure compliance with this part, the filing of the application shall not operate as a stay of collection activities, except for sale of property seized after issuance of the jeopardy determination. Upon a showing of good cause for failure to file a timely application for an administrative hearing, the board may allow a filing of the application and grant the person an administrative hearing. The filing of an application pursuant to this section does not affect Section 50120.1, relating to the finality date of the determination, and the attachment of the delinquency penalty and interest.

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