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									technical                                               student accountant
page 62                                                 JaNUaRY 2009

This article covers the topic Income from trusts and settlements, item A1 (b) (vi) of the Study Guide.
It supersedes the article entitled The taxation of trusts and trust beneficiaries, first published in the
November/December 2005 issue of student accountant. The taxation of unit trusts and real estate
investment trusts (REITs), item A2 (b) (ii) of the Study Guide, is covered in a separate article.

The recommended background reference text is Malaysia Trust Law by Mary            are beneficiaries under a will or intestacy are not allowed to take assets
George. It is not necessary for candidates to know the law in detail, but an       absolutely and there must be a trust in force at least until they reach the age
understanding of the basic concepts is required in tackling questions on           of majority. Sometimes, trusts are established for charitable purposes only.
this topic.                                                                             The terms of a trust will usually be set out in a written document. Trust
     For all practical purposes there is no difference between a trust and a       provisions can vary widely but two basic aspects are important; certainty as
settlement. In referring to the ordinary taxation of ongoing trusts and their      to what the trust property is, and certainty as to the intended beneficiaries.
beneficiaries, the term ‘trust’ will be used. The term ‘settlement’ will only      Beneficiaries might be named specifically or as a class of persons. Frequently,
be used when referring to the anti-avoidance provisions of Section 65 of the       a beneficiary will be given a right to income only and the capital will pass
Income Tax Act 1967 (the Act).                                                     later to somebody else.
                                                                                        Unit trusts and REITs are trusts in the public domain which are regulated
WHAT IS A TRUST?                                                                   by the Securities Commission of Malaysia and are subject to special tax
Unlike a company or a cooperative, which is brought into existence and             provisions. In addition, several other kinds of trust are used in Malaysia. A
registered under the provisions of a specific law, a trust has no separate         common form is the quasi-public trust, or foundation, often established by a
existence in law. The Act contains detailed provisions dealing with the            state government or a government body, which carries on business activities
taxation of trusts but it does not define a trust. The concept is recognised       and may be wholly or partly benevolent in nature. We are more interested
under Malaysian law but we still need to go to English law to find out what a      in trusts established by or for private individuals in order to benefit family
trust really is and to gain an understanding of some of the terminology used.      members for a term of years, and which invest the trust property for income
A trust has been defined as:                                                       and/or capital gain. There is also what is known as the ‘bare trust’, which is
                                                                                   really no more than a nominee for the beneficial owner of the property.
‘An equitable obligation, binding a person (who is called the trustee) to deal
with property over which he has control (which is called the trust property)       METHOD OF TAXATION
for the benefit of persons (who are called the beneficiaries or cestuis que        The Act, in Sections 61 to 63, sets out specific rules for taxing the income
trust) of whom he may himself be one, and any one of whom may enforce              of trusts. These cover the trust body itself and the beneficiaries, who are
the obligation.’ (Underhill quoted with approval in Green v. Russell (1959) 2      assessed and charged to tax separately from the trust body.
Q.B.226)                                                                                The trustees, from time to time, are known as ‘the trust body’ and as
                                                                                   such, are regarded as a single and separate ‘person’ for all tax purposes
In short, it means that legal control of some property is given to the trustee     (except for the penalty provisions).
(or trustees if more than one) to look after the property for somebody else for         Trusts, whether carrying on business or not, have to comply with the
a time. Normally, the trustee will have no right to take the property or use it    self-assessment system in the same way as companies do, in particular:
for themselves.                                                                         the basis period is the period covered by any accounts made up by the
     A trust can be created in a number of different ways. Sometimes a trust            trust, otherwise the year to 31 December
is set up by a person during their lifetime by the transfer of assets or cash to        the return of income must be submitted within seven months of the end
trustees. The person who makes the trust is called the settlor. Otherwise, a            of the basis period
trust may come into existence on a death by the operation of law or under               any tax due must be paid without further demand within seven months of
a will. This is not so rare a happening because under-age children who                  the end of the basis period
page 63

                the trust must provide an estimate of tax payable within one month
                before the commencement of its basis period, and make
                instalment payments.

            The first step in dealing with the tax position of the trust body and of the
            beneficiaries is to ascertain the total income of the trust body computed in
            accordance with Section 44 of the Act.
                The normal rules for computation of income, including the source rules,
            continue to apply. Income of the trust body consists of income from any
            source comprising property of the trust, including a trustee’s share of any
            partnership income which is also trust income. However, a trust body is
            not allowed to take advantage of the concessionary basis (special purpose
            building or minimum number of properties) to determine whether its rental
            income is business income or not.
                Deductions can be made from gross income in ascertaining the adjusted
            income from each source, but these follow the normal rules of deduction
            under Section 33 of the Act. Capital allowances and relief for losses may also
            be available where the trustees carry on a business activity. Any expenses
            would have to qualify in relation to a particular source of income. There is
            no general deduction for administration expenses such as trustees’ fees.
            Cash and other gifts specified under Section 44 of the Act can be deducted
            in ascertaining the total income of the trust. However, a limitation to 7% of
            aggregate income applies to approved donations and, where applicable, to
            the aggregate of such donations taken together with gifts for sports activities
            or projects of national interest. A deduction can also be made for any zakat
            perniagaan paid by trustees on trust income but limited to 2.5% of aggregate
            income. Candidates are expected to be aware of the rules of Section 44 under
            which some of these deductions take precedence over others.
                Subject to one important exception (see below), the trust body is
            assessed and charged to tax by reference to the whole of its total income.

            EXAMPLE 1
            The trust body of ABC Trust is resident in Malaysia. Accounts are made up
            to 30 June each year. The trust had the following amounts of income for the
            basis period 1 July 2006 to 30 June 2007. This forms the total income of
            the trust body for the year of assessment 2007:
            Statutory income
            Property                                                             16,000
            Dividends (taxed at source at 27%)                                    8,000
            Total income                                                         24,000

            Subject to any set off for tax paid by instalments, the trust body will have the
            following liability to tax due for payment no later than 31 January 2008:
            Tax on RM24,000 at 27% (the rate applicable to trusts)                     6,480
            Less Section 110 set off re dividends RM8,000 at 27%                     (2,160)

            A beneficiary entitled to income from a trust is deemed to have a source
            of income in relation to the trust. This is equivalent to the total income of
            the trust for the year of assessment concerned or, in the case of several
            beneficiaries, a fraction of the total income equal to their fractional
            entitlement to the distributable income in the basis year for the year of
            assessment concerned. This is known as ordinary source. Distributable
            income means the actual income available for distribution by the trustees.
            That is not necessarily the same as the total income for tax purposes. The
            basis year is a calendar year but it is not necessarily the same as the basis
            period. In the case of ABC Trust in Example 1, the basis period for the year of
            assessment 2007 is the year to 30 June 2007 but the basis year is the year
            to 31 December 2007.
technical                                               student accountant
page 64                                                 JaNUaRY 2009

     A beneficiary is allowed a credit (under Section 110) for the amount of         Assuming that D’s share of the total income of the trust, but not that of the
tax chargeable on the chargeable income of the trust body or for a proportion        other beneficiaries, is allowed to be deducted in ascertaining the chargeable
of it if they are entitled to less than the whole of the distributable income.       income of ABC Trust, the position for the year of assessment 2007 would
This proportion is calculated by dividing the beneficiary’s ordinary source          then be as follows:
income from the trust for the year of assessment concerned by the total
income of the trust for that year. Note that the tax chargeable on the trust is      Trust
not necessarily the same as the tax payable by the trust.                                                                                                       RM
                                                                                     Total income as in Example 1                                            24,000
EXAMPLE 2                                                                            Less amount deducted re D                                             (12,000)
Continued from Example 1.                                                            Chargeable income                                                       12,000
                                                                                     Tax at 27%                                                               3,240
Beneficiary D, a Malaysian resident, is entitled to half of the distributable        Less Section 110 set off re dividends RM4,000 (½ x RM8,000)
income of ABC Trust for the basis year to 31 December 2007. Assuming the             at 27%                                                                 (1,080)
beneficiary to be a single man with no other income or deductions to claim,          Tax due for payment no later than 31 January 2008                        2,160
his tax position for the year of assessment 2007 is:
                                                                               RM    Beneficiary D
Statutory income ordinary source ½ x RM24,000                             12,000                                                                                RM
Personal relief                                                           (8,000)    Chargeable income as in Example 2                                        4,000
Chargeable income                                                           4,000    Tax on chargeable income                                                     -
Tax payable RM4,000 - RM2,500 = RM1,500 at 1%                                   15   Less Section 110 set off re dividends RM4,000 (½ x RM8,000)
Rebate – RM350 limited to                                                     (15)   at 27%                                                                 (1,080)
                                                                                 -   Tax repayable                                                            1,080
Less Section 110 set off 12,000/24,000 x RM6,480                          (3,240)
Tax repayable                                                               3,240    When the fractional entitlement of a beneficiary changes during the basis
                                                                                     year, the total income is apportioned between the different periods on a time
In fact, there is no need for the ABC Trust to make any tax payment in               basis. A beneficiary’s entitlement is then calculated separately for each time
respect of D’s share of the total income. The Director General has a power,          period and their ordinary source income for the year is the aggregate of the
which is usually exercised in such cases, to deduct the income entitlement           fractional entitlements.
of a resident beneficiary in ascertaining the chargeable income of a
trust body.                                                                          EXAMPLE 4
                                                                                     Continued from Examples 1 to 3.
Continued from Examples 1 and 2.                                                     Beneficiaries E and F were each entitled to a quarter of the distributable
                                                                                     income of ABC Trust until 31 March 2007 when E passed away. F then
                                                                                     became entitled to a half share.

                                                                                     Apportionment of total income:
                                                                                        1 January 2007 to 31 March 2007 3/12 x RM24,000 = RM6,000
                                                                                        1 April 2007 to 31 December 2007 9/12 x RM24,000 = RM18,000

                                                                                     E’s ordinary source income ¼ x RM6,000 = RM1,500
                                                                                     F’s ordinary source income ¼ x RM6,000 + ½ x RM18,000 = RM10,500

                                                                                     Note: For simplicity, the apportionments have been calculated by reference to
                                                                                     months rather than days.

                                                                                     Trusts intended to benefit minors frequently provide that income is to
                                                                                     be accumulated by the trustees for a period of time rather than being
                                                                                     distributed year by year. The trust will bear any tax attributable to the
                                                                                     income. On subsequent distribution, such income is not treated as income
                                                                                     of the recipient. Where some of the income is to be accumulated and some
                                                                                     distributed, an appropriate part of the total income of the trust body will be
                                                                                     disregarded when calculating the share of income of a beneficiary entitled to
                                                                                     income distributions.

                                                                                     EXAMPLE 5
                                                                                     Continued from Examples 1 to 4.

                                                                                     In fact, in ABC Trust, a third of the trust income was being accumulated
                                                                                     for a minor during the basis year 2007, and only the distributable income
                                                                                     is revealed in Examples 1 to 4. The full amount of the trust’s total income
                                                                                     for the year of assessment 2007 is RM36,000. The full position is
                                                                                     as follows:
page 65

                                         All income Accumulated Distributed
                                                 RM         RM          RM
Statutory income
    Property                                 24,000         8,000        16,000
    Dividends                                12,000         4,000         8,000
Total income                                 36,000        12,000        24,000

Tax on RM36,000 at 27%                         9,720         3,240        6,480
Less Section 110 set off re dividends
RM12,000 at 27%                              (3,240)       (1,080)       (2,160)
Tax payable by the trust (ignoring any
reduction for beneficiary D)                   6,480         2,160        4,320     The Malaysian dividends constitute
                                                                                    the total income of the trust body, which is deemed to
Note: Only the amounts in the third column are taken into account in respect        be derived from Malaysia in accordance with Section 14 of the Act. The tax
of beneficiaries D, E and F.                                                        position of the trust is as follows:

The trust body, as a separate person, is distinct from its beneficiaries, and
the residence position of each is determined independently. The taxability          RM
of a beneficiary will usually be affected by their own residence position           Gross dividends RM21,900 x 100/73                                        30,000
and, to some extent, by the residence position of the trust body. Apart from        Tax chargeable at 28%                                                      8,400
determining the tax rate applicable to it, the residence position of the trust      Less Section 110 credit RM30,000 at 27%                                  (8,100)
body does not affect its own taxability. A non-resident trust is taxed at the       Tax payable                                                                  300
normal non-resident rate (presently 28%), but the rate for a resident trust
may be different (eg 27% for the year of assessment 2007).                          Note: The foreign dividends are not part of the total income whether received
    There is a special rule to ascertain the residence position of a trust body.    in Malaysia or not.
In general, a trust body is resident for a basis year for a year of assessment if
any one or more of the trustees is resident for that year. However, if:             In the case of a beneficiary, their share of the total income of a trust,
a the trust was created outside Malaysia by a non-citizen, and                      determined in accordance with their fractional entitlement to the distributable
b the trust income for the basis year is wholly derived outside Malaysia,           income of the trust, is deemed to be a source of income for them and it is
    and                                                                             deemed to be derived from Malaysia. This applies whether the beneficiary is
c the trust is administered for the whole of the basis year outside Malaysia,       resident or not and whether the trust body is resident or not.
d at least half the trustees are not resident in that basis year                    EXAMPLE 7
then the trust body will not be resident for that year.                             Continued from Example 6.

The tax residence of an individual beneficiary is determined under Section 7        Sam and Nick were entitled to a third of the income of the trust for the year
of the Act in the usual way, as is the residence of any individual trustee. The     of assessment 2007. The other third was accumulated under the terms of the
residence of a corporate trustee is determined in accordance with Section 8.        trust. Nick was resident in Malaysia for that year but Sam was not.
                                                                                         Sam and Nick both have deemed income from the trust of RM10,000
SOURCE OF INCOME                                                                    (2/3 of RM30,000 x 1/2). Sam, as a non-resident, is liable to tax at 28% on
For a trust body, whether resident or not, it is important to have regard to        his share of income. Nick is taxable as a resident according to his personal
the rules applicable to sources of income. Income which accrues in (or is           circumstances. Each is entitled to a Section 110 set off for a proportion of
derived from) Malaysia, or is deemed to be derived from Malaysia, is income         the tax chargeable on the trustees in respect of the distributable income
of the trust for tax purposes. Foreign source income is not within the scope of     (RM8,400 - 1/3 = RM5,600/2 = RM2,800).
charge. Even if it is received in Malaysia, it is exempted by Paragraph 28 of
Schedule 6 of the Act.                                                              FURTHER SOURCE INCOME OF A BENEFICIARY
                                                                                    The Act provides for the matching of trust income actually received by a
EXAMPLE 6                                                                           beneficiary during a basis year for a year of assessment with their ordinary
Based on Question 4 (b), Paper 11, December 1998.                                   source income, calculated in accordance with their fractional entitlement.
                                                                                    ‘Further source income of a trust beneficiary’ has been made an excluded
A non-resident trust had the following income for the year of assessment            topic (Study Guide A1) and candidates will not be examined on this topic.
2007 (the basis period being the year to 31 December):
                                                                             RM     DISCRETIONARY TRUSTS
Dividends from Malaysian-resident companies, after deduction                        A discretionary trust is one in which the trustees are given power to allocate
of tax at 27%                                                            21,900     income between members of a class of beneficiaries in varying proportions
Dividends from other countries, after deduction of tax                   63,000     (or not at all). This requires a different method of calculating the beneficiary’s
                                                                         84,900     share of income.
                                                                                         The starting point is the total income of the trust body for a year of
                                                                                    assessment. This amount is compared with the total of all sums classified
                                                                                    as income received in Malaysia by the beneficiary from the trust in the basis
                                                                                    year for that year of assessment. The lower of the two sums becomes the
                                                                                    beneficiary’s ordinary source income from the trust. Where two or more
technical                                               student accountant
page 66                                                 JaNUaRY 2009

beneficiaries have received income distributions during a basis year, the           per year from a trust resident in Switzerland. The annuity income is remitted
amounts are totalled in order to make the comparisons. The lower figure is          to her in Malaysia as it becomes due. For the year of assessment 2008,
then divided in proportion to the respective income distributions.                  RM15,000 of the trust’s total income was derived from Malaysia and the rest
                                                                                    from overseas. Only RM15,000 of the annuity can be deducted by the trust
EXAMPLE 9                                                                           body, leaving it with a total income and chargeable income of nil.
The following applies to the RST Trust for the years of assessment stated:              Out of Madam L’s annuity income, RM15,000 is deemed to be derived
                                                                                    from Malaysia. The balance of RM9,000 represents foreign source income
                                                            Year of assessment      which is exempt. Madam L will be chargeable to tax on her annuity income of
                                                             2006        2007       RM15,000.
Total income                                               12,000       12,000
                                                                                    ANTI-AVOIDANCE AND SETTLEMENTS
Income distributed to beneficiaries in the basis year                               The use of trusts for tax planning purposes has become widespread in some
X                                                          10,000        6,000      jurisdictions to counter the effects of high tax rates, inheritance taxes and
Y                                                               -        3,000      capital gains tax. In Malaysia, little use has been made of trusts for tax
Z                                                               -        9,000      planning, particularly since the repeal of estate duty in 1991 and the virtual
Total                                                      10,000       18,000      halving of tax rates on income. Nevertheless, anti-avoidance provisions
                                                                                    designed to combat aggressive tax planning still exist. Any attempt to use
                                                                                    a trust for tax mitigation must pay regard to the general anti-avoidance
Ordinary source income divided in proportion to distributions                       provisions contained in Section 140 of the Act, which empower the Director
X                                                         10,000         4,000      General to disregard certain transactions which have the effect of avoiding
Y                                                                        2,000      tax, as well as to the specific provisions.
Z                                                         10,000         6,000           Section 65 contains specific anti-avoidance provisions regarding trusts
Total                                                     10,000        12,000      (or ‘settlements’, as they are referred to in the section). It works by deeming
                                                                                    the income of a settlement to be the income of the settlor where certain
The beneficiaries’ ordinary source income for the year of assessment 2007           conditions apply. The obvious intention is to prevent wealthy individuals
would be based on the lower figures for total income.                               from passing over their assets or income to family members who have
                                                                                    nil or low tax rates. In Malaysia’s benign tax climate, few settlors will be
Where a trust is partly discretionary and partly for beneficiaries in fixed         tempted to use settlements to mitigate their taxes. Even so, students should
shares, the income is divided and the two parts are dealt with separately. The      not ignore the anti-avoidance provisions because they can easily affect
same can apply where there is an income accumulating part, so it is possible        a settlement made for non-tax reasons. The reason is that a beneficiary
to have one trust segmented into three different parts.                             entitled to the income of a settlement might not be the legal taxpayer in
    Paragraph 28 of Schedule 6 exempts income derived from a source                 respect of that income because it must be taxed as the income of the settlor.
outside Malaysia and received in Malaysia, and it appears that a discretionary           There are three circumstances in which the section comes into play and
beneficiary of a non-resident trust will not be taxed whether they are resident     the income of a settlement is deemed to be the income of the settlor, instead
or not. As income received in Malaysia is exempt it would be nil and as that        of the income of the trustees or of the legal beneficiary.
would be less than the total income, the ordinary source income would be nil.             The first situation is where, as a result of the settlement, income
                                                                                    will (or may) become payable or applicable in the basis period for a year
TRUST ANNUITIES                                                                     of assessment to (or for the benefit of) a relative of the settlor who at the
The terms of a trust might provide that a person should be paid an annuity of       beginning of that year is under the age of 21 and unmarried. Note that there
a stipulated sum out of the trust income. This is dealt with by Section 63 of       are some absolute defences to this, namely:
the Act, and in rather a different way from a share of the trust income.                 the settlor is no longer alive at the time when the income arises
     For a trust body resident in Malaysia, or for a non-resident trust body with        the relative is married at the beginning of the year of assessment
all of its income derived from Malaysia, the amount of any annuity payable for           the relative reached the age of 21 at the beginning of the year
the basis year for a year of assessment can be deducted in full when calculating         of assessment
the total income for that year. Any other non-resident trust body can only               the person is not a relative of the settlor
deduct the annuity payment up to the amount of its Malaysian source income.              there are no circumstances under which income will or may be paid to
     For the recipient, the annuity represents a source of income. It is deemed          or for the benefit of the relative during the basis period for the year of
to be derived from Malaysia when the trust body is resident in Malaysia                  assessment concerned.
or when all of the income of the trust body is derived from Malaysia.
This applies even if the trust body has no total income for the year. For           The term ‘relative’ includes all of the following:
non-resident trusts deriving part of their income from Malaysia, the annuity            a child or stepchild of the settlor
is also deemed to be derived from Malaysia but only to the extent that it is            a child of whom the settlor has custody or maintains at their own expense
deductible in arriving at the total income of the trust.                                a child adopted by the settlor or by the settlor’s spouse
     A Malaysian resident recipient of an annuity payable by a non-resident             a spouse, grandchild, brother, sister, uncle, aunt, nephew, niece or cousin
trust has a foreign source of income. Although such income would come                   of the settlor.
within the scope of tax when it is received in Malaysia, it would be exempt
from tax by Paragraph 28 of Schedule 6, except to the extent that the annuity       The second situation is where the purported gift is incomplete so that under
is deemed to be derived from Malaysia.                                              the terms of the settlement there is a possibility of the settled property (or the
     For a non-resident recipient, any annuity deemed to be derived from            income from it) passing back to the settlor, or to the spouse of the settlor. The
Malaysia would not be exempt from tax.                                              following are good defences:
                                                                                         the settlement no longer contains the offending terms (ie they have
EXAMPLE 10                                                                               lapsed or have been removed)
Madam L, who is resident in Malaysia, receives an annuity of RM24,000                    the settlor is no longer living.
page 67

                                                                                       1 January 2007 to 31 May 2008. Ruth’s share of income cannot
EXAMPLE 11                                                                             be treated as income of the settlor because she was married at the
Adapted from Question 5, Paper 3.2 (MYS), June 2003.                                   commencement of each year of assessment.
                                                                                       31 May 2008 onwards. Ruth’s share of income cannot be treated as
Mr CH Lee, who passed away on 31 May 2008, had made a settlement on                    income of the settlor from that time onwards, even if she is not married,
1 January 2003, putting into the settlement part of his substantial                    because the settlor is no longer living.
holding of shares in his family company. One of the named beneficiaries
was his daughter Ruth, who was born on 1 June 1988. She married on                 This example can be distinguished from the answer to Paper 3.2 (MYS)
31 December 2006.                                                                  Question 6 in the June 2007 exam. In the latter, the settlor had a power of
                                                                                   appointment in favour of any child of his during his lifetime. Consequently,
Under the terms of the settlement, the income share of any beneficiary who is      any income of the settlement which was or could have become income of a
a minor must be accumulated until that person reaches the age of 18. After         child of his who was under the age of 21 and unmarried at the beginning of a
that, the person is to receive the income until age 30, and then the capital.      year of assessment fell to be treated as income of the settlor. There is no such
                                                                                   power in Example 11.
In making his settlement, Mr Lee retained a power, exercisable during his               A third (and rather rare) situation in which Section 65 may come
lifetime, to appoint the whole or any part of the capital and accumulated          into play is where the settlor, or any of their relatives, or any company
income in favour of his wife. The power of appointment was never exercised.        they control, makes use of any income of the settlement by borrowing or
Mr Lee’s wife passed away on 30 April 2004.                                        otherwise. The consequence is that the income concerned is treated as that
                                                                                   of the settlor. Any tax paid by a settlor on income deemed to be his as a result
The position with regard to Ruth is as follows:                                    of these provisions can be recovered by him from the trustees or any other
    1 January 2003 to 30 April 2004. All income of the settlement,                 person who has received such income.
    including Ruth’s share, will be treated as income of the settlor because
    there is a power under which the settlor’s wife can become entitled to the     REAL PROPERTY GAINS TAX
    property or income of the settlement.                                          For the purposes of this tax, the trustees, as a body of persons, are
    30 April 2004 to 31 May 2006. Ruth’s share of income cannot be                 assessable and chargeable on a joint and several basis with the tax on any
    treated as income of the settlor because (i) the settlor’s wife is no longer   chargeable gains accruing to the trust. However, all persons are exempt
    alive, and (ii) the income is being accumulated and it cannot be paid to       from the provisions of the Real Property Gains Tax Act 1976 with effect
    Ruth or applied for her benefit during this time.                              from 1 April 2007.
    1 June 2006 to 31 December 2006. Ruth is entitled to the income but
    on 1 January 2006 she was neither 21 nor married so the income can             REFERENCE
    be treated as that of the settlor (and not as income of the settlement or         George, M, Malaysia Trust Law, Pelanduk Publications, 1999, ISBN
    of Ruth).                                                                         9679786919.

                                                                                   Richard Thornton is examiner for Paper P6 (MYS)

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