Time: Mon Mar 17 13:08:40 1997
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Mon, 17 Mar 1997 10:49:18 -0700 (MST)
Date: Mon, 17 Mar 1997 13:05:40 -0800
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: A Win against IRS! (2 of 2)
[This is part 2 of 2.]
The Federal Zone:
27. This one section, all by itself, contains all the
evidence you need, by words of construction, to prove that the
term "United States" on either side of these sentences did not
mean the 50 States united by and under the Constitution. If that
is not conclusive to you, then see the following:
26 C.F.R. 31.3121(e)-1 State, United States, and citizen.
(a) When used in the regulations in this subpart, the term
"State" includes [in its restrictive form] the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, the Territories of Alaska and Hawaii before their
admission as States, and (when used with respect to services
performed after 1960) Guam and American Samoa.
(b) When used in the regulations in this subpart, the term
"United States", when used in a geographical sense, means
the several states, (including the Territories of Alaska and
Hawaii before their admission as States), the District of
Columbia, the Commonwealth of Puerto Rico, and the Virgin
Islands. When used in the regulations in this subpart with
respect to services performed after 1960, the term "United
States" also includes [in its expansive form] Guam and
American Samoa when the term is used in a geographical
sense. The term "citizen of the United States" includes [in
its restrictive form] a citizen of the Commonwealth of
Puerto Rico or the Virgin Islands, and, effective January 1,
1961, a citizen of Guam or American Samoa.
[emphasis added]
Please note the bolded terms. In paragraph (a), Alaska and
Hawaii only fit the definition of "State" before joining the
Union. That means the definition of "State" was never meant to
be the 48 now 50 States of the Union unless distinctly expressed.
If paragraph (b) confuses you, the following is submitted:
28. The word "geographical" was never used in tax law until
Alaska and Hawaii joined the Union, and it is not defined in the
Internal Revenue Code. So, we must use the definition found in
the Standard Random House Dictionary:
ge.o.graph.i.cal 1. of or pertaining to geography 2. of
or pertaining to the natural features, population,
industries, etc., of a region or regions
29. Were you born in the "United States"? The preposition
"in" shows that the "United States" in this question is a place,
a geographical place named "United States". It is singular, even
though it ends in "s". It also can be plural when referring to
the Union States which are places which exist by agreement.
Page A - 14 of 26
Appendix A
Every human in a nation is a natural Citizen of a place called a
nation, if he was born in that nation. Those same people must be
naturalized (born again) if they want to become a citizen of
another nation. Original citizenship exists because of places,
not agreements. This is jus soli, the law of the place of one's
birth (see Black's Law Dictionary, Sixth Edition).
30. Here are two questions, your own answers to which will
solve the dilemma. In a geographical sense, where is the State
of Texas located on the continent? In a geographical sense,
where is the "United States" (Congress) located on the continent?
31. Now, since typewriters were purchased from the areas
that just joined the Union, namely Alaska and Hawaii, according
to Title 1, Congress had to use a term that is NOT used in the
Internal Revenue Code, in order to buy the same typewriters from
the same geographical area:
Sec. 45. Title I of the Independent Offices Appropriation
Act, 1960, is amended by striking out the words "for the
purchase within the continental limits of the United States
of any typewriting machines" and inserting in lieu thereof
"for the purchase within the STATES OF THE UNION AND THE
DISTRICT OF COLUMBIA OF ANY TYPEWRITING MACHINES".
[emphasis added]
And, for declarations made under the penalties of perjury, the
statute at 28 U.S.C. 1746 separately defines declarations made
WITHIN and WITHOUT the "United States" as follows:
If executed WITHOUT the United States: I declare ... under
the laws of the United States of America that the foregoing
is true and correct.
If executed WITHIN the United States, its territories,
possessions, or commonwealths: I declare ... that the
foregoing is true and correct.
[emphasis added]
The latter clause above is the penalty clause that is found on
IRS Form 1040 and similar IRS forms.
And, 28 U.S.C. 1603(a)(3) states as follows:
(3) which is neither a citizen of a State of the United
States as defined in section 1332(c) and (d) of this title
....
Section 1332(d). The word "States", as used in this section,
includes the Territories, the District of Columbia, and the
Commonwealth of Puerto Rico.
Page A - 15 of 26
The Federal Zone:
Examples of Two Definitions
of the term "United States" in 26 U.S.C.
First Definition
32. 26 U.S.C. 7701(a)(9):
(9) United States. -- The term "United States" when used in
a geographical sense includes only the States and the
District of Columbia.
Second Definition
33. 26 U.S.C. 4612(a)(4)(A):
(A) In general. -- The term "United States" means the 50
States, the District of Columbia, the Commonwealth of Puerto
Rico, any possession of the United States, the Commonwealth
of the Northern Mariana Islands, and the Trust Territory of
the Pacific Islands.
[emphasis added]
34. The Supreme Court stated in Hepburn & Dundas vs Ellsey,
6 U.S. 445, 2 Cranch 445, 2 L.Ed 332, that the District of
Columbia is not a "State" within the meaning of the Constitution.
Therefore, it is apparent that the meaning of the term "States"
in the first definition above can only mean the territories and
possessions belonging to the "United States", because of the
specific mention of the District of Columbia and the specific
absence of the 50 States (inclusio unius est exclusio alterius).
The District of Columbia is not a "State" within the meaning of
the Constitution (see Hepburn supra). Therefore, the 50 States
are specifically excluded from this first definition of the term
"United States".
35. Congress has no problem naming the "50 States" when it
is legislating for them, so, in the second definition of the term
"United States" above, Congress expressly mentions them, and
there is no misunderstanding. If a statute in 26 U.S.C. does not
have a special "word of art" definition for the term "United
States", then the First Definition of the term "United States" is
always used (see above) because of the general nature of that
term as defined by Congress.
36. When citizens or residents of the first "United States"
are without the geographical area of this first "United States",
their "compensation for personal services actually rendered" is
defined as "foreign earned income" in 26 U.S.C., Section 911(b)
and 911(d)(2), as follows:
Page A - 16 of 26
Appendix A
911(b) Foreign Earned Income. -- ...
(d)(2) Earned Income. --
(A) In general. -- The term "earned income" means wages,
salaries, or professional fees, and other amounts received
as compensation for personal services actually rendered, but
does not include that part of the compensation derived by
the taxpayer for personal services rendered by him to a
corporation which represents a distribution of earnings or
profits rather than a reasonable allowance as compensation
for the personal services actually rendered.
37. A citizen or resident of the first "United States" does
not pay a tax on his "compensation for personal services actually
rendered" while residing outside of the first "United States",
because Congress has exempted all such compensation from taxation
under 26 U.S.C., Section 911(a)(1), which reads as follows:
911(a) Exclusion from Gross Income. -- ... [T]here shall be
excluded from the gross income of such individual, and
exempt from taxation ... (1) the foreign earned income of
such individual ....
38. When residing without (outside) this "United States",
the citizen or resident of this "United States" pays no tax on
"foreign earned income", but is required to file a return,
claiming the exemption (see IRS Form 2555).
39. 26 C.F.R., Section 871-13(c) allows this citizen to
abandon his citizenship or residence in the "United States" by
residing elsewhere.
40. 26 C.F.R., Section 1.911-2(g) defines the term "United
States" as follows:
(g) United States. The term "United States" when used in a
geographical sense includes any territory under the
sovereignty of the United States. It includes the states4,
[Puerto Rico, Guam, Mariana Islands, etc.] the District of
Columbia, the possessions and territories of the United
States, the territorial waters of the United States, the air
space over the United States, and the seabed and subsoil of
those submarine areas which are adjacent to the territorial
waters of the United States and over which the United States
has exclusive rights, in accordance with international law
....
____________________
4. This term "state" evidently does not embrace one of the 50
States (where I am a free inhabitant), united by the
Constitution, because they are separate governments or
foreign states with respect to the "United States" (i.e.
D.C., its territories, possessions and enclaves).
Page A - 17 of 26
The Federal Zone:
None of the 50 united States comes under the sovereignty of the
"United States", and subsection (h) defines the 50 States united
by the Constitution as "foreign countries":
(h) Foreign country. The term "foreign country" when used
in a geographical sense includes any territory under the
sovereignty of a government other than that of the United
States.
[26 C.F.R. 1.911-2(h)]
All of the 50 States are foreign with respect to each other and
are under the sovereignty of their respective Legislatures,
except where a power has been expressly delegated to Congress.
The Citizens of each Union State are foreigners and aliens with
respect to another Union State, unless they establish a residence
therein under the laws of that Union State. Otherwise, they are
nonresident aliens with respect to all the other Union States.
41. The regulations at 26 C.F.R., Section 1.1-1(a) state,
in pertinent part:
(a) General Rule. (1) Section 1 of the Code imposes an
income tax on the income of every individual who is a
citizen or resident of the United States and, to the extent
provided by Section 871(b) or 877(b), on the income of a
nonresident alien individual.
26 U.S.C., Section 1 imposes a tax on "taxable income" as
follows, in pertinent part:
There is hereby imposed on the taxable income of ... every
married individual ... who makes a single return jointly
with his spouse under section 6013 ....
42. The regulations promulgated to explain 26 U.S.C.,
Section 1 are found in 26 C.F.R., Section 1.1-1, and state in
pertinent part:
(a) General Rule. (1) Section 1 of the Code imposes an
income tax on the income of every individual who is a
citizen or resident of the United States and, to the extent
provided by Section 871(b) or 877(b), on the income of a
nonresident alien individual.
Please note that the term "taxable income" is not used as such in
the above statute because the "income" of those classes of
individuals mentioned is taxable as "taxable income".
Page A - 18 of 26
Appendix A
Section 1.871 Classification and manner of taxing alien
individuals
(a) Classes of aliens. For purposes of the income tax,
alien individuals are divided generally into two classes,
namely, resident aliens and nonresident aliens. ...
(b) Classes of nonresident aliens. --
(1) In general. For purposes of the income tax,
nonresident alien individuals are divided into the following
three classes:
(i) Nonresident alien individuals who at no time during the
taxable year are engaged in a trade or business in the
United States,
(ii) Nonresident alien individuals who at any time during
the taxable year are, or are deemed under Section
1.871-9 to be, engaged in a trade or business in the
United States, and
(iii) NOT APPLICABLE (concerns residents of Puerto Rico)
43. 26 C.F.R., Section 871-13 states as follows:
(a) In general. (1) An individual who is a citizen or
resident of the United States at the beginning of the
taxable year but a nonresident alien at the end of the
taxable year, or a nonresident alien at the beginning of the
taxable year but a citizen or resident of the United States
at the end of the taxable year, is taxable for such year as
though his taxable year were comprised of two separate
periods, one consisting of the time during which he is a
citizen or resident of the United States and the other
consisting of the time during which he is not a citizen or
resident of the United States.
It sounds complicated, doesn't it?
NONRESIDENT ALIEN
44. The federal income tax is a local tax for the "United
States" to support local government and, in order to become
liable to this tax, a State Citizen must be a resident therein
(i.e. a resident alien), or receive income from sources therein,
or be engaged in a trade or business therein.
45. In 26 U.S.C., Section 7701(b)(1)(A) & (B), Congress
defined the statutory difference between "resident alien" and
"nonresident alien" as follows:
Page A - 19 of 26
The Federal Zone:
(b) Definitions of Resident Alien and Nonresident Alien. --
(1) In general. -- For purposes of this title ...
(A) Resident Alien. -- An alien individual shall be treated
as a resident of the United States with respect to any
calendar year if (and only if) such individual meets
the requirements of clause (i), (ii), or (iii):
(i) Lawfully admitted for permanent residence. -- Such
individual is a lawful permanent resident of the
United States at any time during such calendar
year.
(ii) Substantial presence. -- Such individual meets the
substantial presence test of paragraph (3).
(iii) First year election. -- Such individual makes the
election provided in subparagraph (4).
(B) Nonresident Alien. -- An individual is a nonresident
alien if such individual is neither a citizen of the
United States nor a resident of the United States
(within the meaning of subparagraph (A)).
46. Plaintiffs are not "residents" (as that term is defined
in the above statutes) nor are they citizens of this "United
States". They are nonresident aliens as that term is defined in
subsections (B) and (A)(i), (ii), and (iii), and they have the
same status as the Plaintiff in Brushaber supra.
INDIVIDUALS REQUIRED TO MAKE RETURNS OF INCOME
47. The following individuals are required to make returns
of income:
26 C.F.R., Section 1.6012-1. Individuals required to make
returns of income.
(a) Individual citizen or resident. --
(1) In general. ... an income tax return must be filed by
every individual ... if such individual is ...
(i) A citizen of the United States, whether residing
at home or abroad,
(ii) A resident of the United States even though not a
citizen thereof, or
(iii) An alien bona fide resident of Puerto Rico during
the entire taxable year.
Page A - 20 of 26
Appendix A
48. John and Lois Knox clearly are not defined in the above
statutes, but they are defined in the following statute as ones
who are not required to make a return.
49. 26 C.F.R., Section 1.6013-1 states:
(b) Nonresident Alien. A joint return shall not be made if
either the husband or wife at any time during the taxable
year is a nonresident alien.
Mr. John H. Knox and Mrs. Lois C. Knox are nonresident aliens
with respect to the "United States", with no income derived from
sources within the "United States", except for John's Military
Retirement pay, which is exempt from taxation.
50. 26 C.F.R., Section 871-7 states, in pertinent part, as
follows:
Except as otherwise provided in Section 1.871-12, a
nonresident alien individual to whom this section applies is
not subject to the tax imposed by section 1 or section
1201(b)5 but, pursuant to the provision of section 871(a),
is liable to a flat tax of 30 percent upon the aggregate of
the amounts determined under paragraphs (b), (c), and (d) of
this section which are received during the taxable year from
sources within the United States.
[emphasis added]
51. Please note 26 C.F.R., Section 1.871-4(b), Proof of
residence of aliens, which establishes a key legal presumption:
(b) Nonresidence presumed. An alien by reason of this
alienage, is presumed to be a nonresident alien.
52. Further facts are illustrated by the definition of
"withholding agent" at 26 U.S.C., Section 7701(a)(16):
Withholding agent. -- The term "withholding agent" means any
person required to deduct and withhold any tax under the
provisions of section 1441, 1442, 1443, or 1461.
53. 26 U.S.C., Section 1441 refers to nonresident aliens
who receive income from sources within the "United States", as
set forth in Section 871(a)(1). The other sections do not apply
to the Plaintiffs.
54. Your attention is invited to 26 C.F.R., Section
31.3401(a)(6)-1(b), which states as follows:
____________________
5. Capital gains tax.
Page A - 21 of 26
The Federal Zone:
Remuneration for services performed outside the United
States. Remuneration paid to a nonresident alien individual
... for services performed outside the United States is
excepted from wages and hence is NOT SUBJECT TO WITHHOLDING.
[emphasis added]
55. As a rule, Military Retirement Pay of a nonresident
alien individual is exempted from the income tax at 26 C.F.R.,
Section 31.3401(a)-1(b)(1)(ii), with the following exception:
Where such retirement pay or disability annuity ... is paid
to a nonresident alien individual, withholding is required
only in the case of such amounts paid to a nonresident alien
individual who is a resident of Puerto Rico.
and at 26 C.F.R., Section 935-1(a)(3):
... [F]or special rules for determining the residence for
tax purposes of individuals under military or naval orders,
see section 514 of the Soldiers' and Sailors' Civil Relief
Act of 19406, 50 App. U.S.C. 574. The residence of an
individual, and, therefore, the jurisdiction with which he
is required to file an income tax return under paragraph (b)
of this section, may change from year to year.
Section 574(1) of The Soldiers' and Sailors' Relief Act states
that:
For the purposes of taxation in respect of the personal
property, income, or gross income of any such person by any
State, Territory, possession, or political subdivision of
any of the foregoing, or the District of Columbia, of which
such person is not a resident or in which he is not
domiciled ... personal property shall not be deemed to be
located or present in or to have a situs for taxation in
such State, Territory, possession or political subdivision,
or district.
[emphasis added]
EXTRAORDINARY AND EXCEPTIONAL CIRCUMSTANCES
56. Plaintiffs herein are at an advanced age of 62 and both
are in ill health, unable to work or to pay the tax or to sue for
a refund. Lois has only one kidney which does not function
properly; complicating this is a lung disease which prevents her
from breathing. She has been totally disabled since 1981, with
no earned income from any source since that time. John has
emphysema and has difficulty breathing upon exercise. They are
____________________
6. See Exhibit #6 attached hereto and made a part hereof.
Page A - 22 of 26
Appendix A
unable to pay the tax and sue for refund without the complete
destruction of their home, which is combined with their business.
The property which is the subject of this case is a one-of-a-kind
property which is, or would be, irreplaceable years down the
road, if a refund suit was won. The property has a value of
$100,0007 and was allegedly sold for the sum of $16,000.00, which
is all that could be recovered in a refund suit as pertains to
said property. This creates an irreparable situation for
Plaintiffs. The tax with penalties and interest claimed by the
government against both Plaintiffs for 1982 is around $19,000.00
and, without the sale of the business property and home, it will
be many years before a tax in this amount can be paid in full.
Plaintiffs will not live long enough to prosecute such a suit.
Equity and justice require some relief in such a situation.
AUTHORITY FOR THE COURT TO ISSUE THE INJUNCTION
57. In Botta vs Scanlon, 288 F.2d 504 (2nd Circuit, 1961),
the Court set forth the general exceptions to the bar at 26
U.S.C., Section 7421, stating (see EXHIBIT #7):
"... [I]t has long been settled that this general
prohibition is subject to exception in the case of an
individual taxpayer against a particular collector where the
tax is clearly illegal or other special circumstances of an
unusual character make an appeal to equitable remedies
appropriate." National Foundry Co. of N.Y. vs Director of
Int. Rev., 2 Cir. 1956, 229 F.2d 149, 151.
The Court then gave a number of examples, as follows:
"(a) Suits to enjoin collection of taxes which are not
due from the plaintiff but, in fact, are due from others.
For example, see Raffaele vs Granger, 3 Cir. 1952, 196 F.2d
620, 622 ....
"(b) Cases in which plaintiff definitely showed that
the taxes sought to be collected were "probably" not validly
due. For example, Midwest Haulers, Inc. vs Brady, 6 Cir.
1942, 128 F.2d 496, and John M. Hirst & Co. vs Gentsch, 6
Cir. 1943, 133 F.2d 247.
"(c) Cases in which a penalty was involved. For
example, Hill vs Wallace, 259 U.S. 44, 42 S.Ct 453, 66 L.Ed
822; Lipke vs Lederer, 259 U.S. 557, 42 S.Ct. 549, 66 L.Ed.
1061; Regal Drug Corporation vs Wardell, 260 U.S. 386, 43
S.Ct 152, 67 L.Ed 318; Allen vs Regents of the University
System of Georgia, 304 U.S. 439, 58 S.Ct 980, 82 L.Ed 1448.
____________________
7. The property had a value of $125,000 two years ago, when the
IRS allegedly sold it.
Page A - 23 of 26
The Federal Zone:
"(d) Cases in which it was definitely demonstrated that
it was not proper to levy the tax on the commodity in
question, such as Miller vs Standard Nut Margarine Company
of Florida, 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed 422.
"(e) Cases based upon tax assessment fraudulently
obtained by the tax collector by coercion. For example,
Mitsukiyo Yoshimura vs Alsup, 9 Cir. 1948, 167 F.2d 104"
(141 F.Supp. at page 338).
[4] In the present case, if any of the plaintiffs are not
subject to any tax liability, such plaintiff might well be
within the exception stated in 9 Mertens, Law of Federal
Income Taxation, Section 49.213, Chapter 49, page 226, as
follows: ...
"[2] It is equally well setted [sic] that the Revenue laws
relate only to taxpayers. No procedure is prescribed for a
nontaxpayer where the Government seeks to levy on property
belonging to him for the collection of another's tax, and no
attempt has been made to annul the ordinary rights or
remedies of a non-taxpayer in such cases. If the Government
sought to levy on the property of A for a tax liability
owing to B, A could not and would not be required to pay the
tax under protest and then institute an action to recover
the amount so paid. His remedy would be to go into a court
of competent jurisdiction and enjoin the Government from
proceeding against his property." In Tomlinson vs Smith, 7
Cir. 1942, 128 F.2d 808 ... the Court affirmed an order
granting interlocutory injunction and noted the "distinction
between suits instituted by taxpayers and non-taxpayers" (at
page 811).
CONCLUSION
Plaintiffs are in no way subjected to any derivative
liability. The procedures set forth in 26 C.F.R. do not
authorize the Secretary or his delegate to manufacture income and
tax it where a Person is without the taxable class. 26 C.F.R.,
Section 871 is unclouded in that, where there is no income from
sources within the "United States" by a nonresident alien, the
choice is delegated to that Person by Congress as to whether a
return is to be filed or not (see 26 C.F.R. 1.871-8). Where the
Secretary determines the existence of taxable income when there
has been no return, he should sign the substitute return and
assume the responsibility for the determination as required by 26
U.S.C. 6020(b)(1). Treasury Decision 2313 explains that the
withholding agent is responsible for withholding the tax from
sources within the "United States", for filing a Form 1040NR and
for paying over the tax withheld from said nonresident alien.
(See Treasury Decision 2313 and 26 C.F.R. 1.1461-3). Therefore,
no penalties should accrue to the Plaintiffs. Lois K. Knox has
no community property interest in John's Military Retirement Pay
and, therefore, no taxable income accrues therefrom.
Page A - 24 of 26
Appendix A
The fact that the Knoxs were not aware of the above
information from the early years of their lives and they reported
the "earned income" from their labor in the foreign States of the
Union as a local tax of the "United States", does not change
their status as Citizens of the Republic of Union States. Nor
does it change their status from nonresidents aliens to the
"individuals" defined in 26 C.F.R., Section 1.1-1. Nor does it
justify the Secretary's actions taken when he has been repeatedly
informed by the Knoxs of their true status. The Secretary is
required to know the law he is administering, and to do so with
justice and equity within the parameters set forth by Congress.
Arbitrary actions are discouraged by the Executive, the Congress
and the Courts.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that this
Court grant a temporary and permanent injunction against the IRS,
its employees, agents, Commissioner and Attorneys by ordering a
cessation of the levies and seizures against all forms of
property owned by Plaintiffs; that the Court order a return of
property seized in the past, declare the sale of such property
voidable or void, and order a release of all liens filed against
the Plaintiffs. In the alternative, Plaintiffs request that this
case be remanded back to the Administrative Agency for resolution
and arbitration. Plaintiffs further request the Court to grant
such other and further relief in law or in equity as Plaintiffs
may be entitled.
I declare under penalty of perjury, under the laws of the
United States of America, that the foregoing is true and correct,
to the best of my knowledge and belief, per 28 U.S.C. 1746(1).
Executed on this 5th day of September, 1991.
Respectfully submitted,
/s/ John H. Knox
Page A - 25 of 26
The Federal Zone:
[addendum to Knox brief]
CASES
ARGUED AND DETERMINED
in the
SUPREME COURT OF JUDICATURE
of the
STATE OF INDIANA
at Indianapolis, November Term, 1878,
in the Sixty-Third Year of the State.
-----+-----
Daly et al. vs The National Life Insurance Company
of the United States of America.
[cite omitted]
"Foreign Corporation" Defined. -- The statutes of this State
define a foreign corporation to be "a corporation created by or
under the laws of any other state, government, or country," or
one "not incorporated or organized in this State".
Same. -- Insurance Company Created by Act of Congress. -- An
insurance company created by an act of Congress is a foreign
corporation subject to the requirements of the statute of this
State approved June 17th, 1852, "respecting foreign corporations
and their agents in this State." 1 R.S. 1876, p. 373.
Same. -- Congress as a Local Legislature. -- Constitutional Law.
-- An act of Congress creating a private corporation is the act
of Congress as the local Legislature of the District of Columbia;
as Congress can not, under the federal constitution, as the
Congress of the United States, create a private corporation.
# # #
Page A - 26 of 26
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Paul Andrew, Mitchell, B.A., M.S. : Counselor at Law, federal witness
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ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best
Tucson, Arizona state : state zone, not the federal zone
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