Effective 28 November 2016 EXCISE EXTERNAL STANDARD BONDS Effective 28 November 2016 TABLE OF CONTENTS 1 2 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 2.9 2.10 2.11 2.12 2.13 2.14 2.15 2.16 3 3.1 3.2 3.3 4 5 SUMMARY OF MAIN POINTS STANDARD Acceptance of a bond Security as a condition Change in legal status of a company Request for increase or decrease of bond amount Notice of cancellation and withdrawal of a bond Breach of conditions covered by a bond Keeping of records Penalties Appeal against decisions Determining the need for security Receipt of a bond / addendum Verification of bonds / addendums and supporting documents Registration of the bond or addendum Cancellation of a bond / addendum Withdrawal / replacement of security Breach of conditions RELATED INFORMATION Legislation Cross References Quality Records DEFINITIONS AND ACRONYMS DOCUMENT MANAGEMENT Bonds - External Standard SE-FS-05 Revision: 3 3 3 3 4 5 6 6 7 7 7 7 8 8 8 9 9 10 10 10 10 11 11 11 12 Page 2 of 12 Effective 28 November 2016 1 SUMMARY OF MAIN POINTS a) This document identifies the basis for a decision to request security from Excise clients and identifies the entities which must be considered for lodging security, as well as the relevant forms of such security. b) It also covers the registration, cancellation, increase, decrease or replacement and governance of bonds and addendums. c) This document does not cover: i) ii) iii) iv) v) 2 Customs bonds as this is dealt with in document SC-SE-05; Licensing and Registration as this is dealt with in document SE-FS-02 and SE-FS-21 respectively; Completion of bonds and addendums as this is dealt with in document SE-FS-06-M01; Other forms of security for e.g. placing liens as this is dealt with in the enforcement procedure; and Plant and machinery which cannot be used as security to cover any Excise security risks. STANDARD 2.1 Acceptance of a bond a) In terms of Sections 54E(4), 59A(2)(a), 60(1)(c), 61(1) and (2), 64B(3) and (4), 64D(5), the Commissioner may require that security be lodged, in the form, nature and amount determined by the Commissioner, in order to protect the State from any possible loss of revenue incurred as a result of any relevant activity carried out by that client. b) Based on this discretion of the Commissioner to call for security or not, the following principles apply when determining the need for, the form of and amount of security for Excise clients: i) ii) iii) iv) v) vi) Upon application for a warehouse license or registration, no security will be requested upfront, except in the case of – A) Applicants for the licensing of a Tobacco Manufacturing or Tobacco Special Storage Warehouse, who intend to manufacture and / or store cigarettes, who must lodge security to the amount of R2 million before such a client / warehouse may be licensed; B) Applicants for the licensing of a Fuel Manufacturing Warehouse, who intend to manufacture petroleum products, who must lodge security to the amount of R5 million before such a client / warehouse may be licensed; and C) Applicants for registration as a Schedule 6 Rebate User, who intend to receive and store un-denatured and / or partially denatured spirits, who must lodge security to the amount of R20 000 before such a client / premises may be registered. In all other instances the need for security will be based purely on assessed risk. Such risk assessment of each individual client will be done at least on an annual basis starting twelve (12) months after licensing / registration but security may also be called for at any time when deemed necessary to cover a detected risk posed by a specific client. Security must be in the form of a bond. Provisional Payments (PPs) will not be accepted as security in lieu of bonds. Clients whose assessed risk warrants a security amount of less than R20 000 will be exempted from lodging security. Bonds - External Standard SE-FS-05 Revision: 3 Page 3 of 12 Effective 28 November 2016 c) The following bonds / addendums must be submitted manually to the Excise Licensing, Registration and Cancellation Committee (ELRCC) via the Branch Office (B/O) and is applicable to all new licences / registrations which require bonds or addendums: Bond Header Description i) Excise Addendum: Amend Bond Amount ii) Excise Addendum: Distributor of Fuel iii) Excise Bond: Distributor of Fuel iv) Excise Bond: Environmental Levy v) Excise Bond: Rebates (6th Schedule) vi) Excise Bond: Manufacturer of Excisable Products vii) Excise Bond: Warehouse (OS & SOS) d) Bond number EA01 EA02 EB01 EB02 EB03 EB04 EB05 The following supporting documents must accompany the bond / addendum: i) ii) iii) iv) v) vi) A copy of the letter requesting a bond / addendum ; If a company, the original resolution passed at a meeting of the board of directors; or If a closed corporation, proof of consent of the members on a letter head; and The resolution or consent in writing must be: A) Typed or printed in block letters on the company’s, close corporations, partners of a partnership’s, trustees of the trust’s, association’s or organ of State’s letter head; B) Legible; C) Printed portrait on A4 paper size; D) Printed in black ink on white paper; and E) On two (2) or more separate pages - no back to back or more than one (1) page to a page printing is allowed. The company resolution must contain the following wording: A) <Insert the company’s name > <insert registration number> Incorporated in South Africa (“the company”) B) Resolution passed at a meeting of the board of directors held at <insert place> on <insert date> C) Resolved that: <insert what is resolved that e.g. Mr Green Tree, Financial Director and Mr Joe David Soap, Financial Manager> of the company are hereby authorised and empowered for and on behalf of the company to sign all documentation including bonds, addendums and instruments of security in respect of bonds or addendums issued by the various financial institutions in favour of the South African Revenue Service (SARS) Excise. The close corporation, partners of a partnership, trustees of the trust, association or organ of State resolution must contain the following wording: A) <Insert the close corporations, partnership’s, trust’s, association’s or organ of State’s name> <insert registration number> (incorporated in South Africa (“The Close Corporation, Partnership, Trust, Association or Organ of State”) B) With the express consent in writing of all the members of the close corporation, partners of a partnership, trustees of the trust or the lawfully delegated of such association or organ of State. C) Resolved that <insert what is resolved that e.g. Mr Green Tree, and Mr Joe David Soap>, members of the close corporation, partners of a partnership, trustees, association or organ of State of the Trust are hereby authorised and empowered for and on behalf of the close corporation, partners of a partnership, trustees of the trust, association or organ of State, to sign all documentation including bonds, addendums and instruments of security in respect of bonds/addendums issued by the various financial institutions in favour of SARS Excise. 2.2 Security as a condition a) Clients can make use of various financial institutions for various client type bonds. This means that a client can have a rebate bond from financial institution X and a warehouse bond from financial Institution Y. b) A list of the insurers approved to issue bonds can be found at www.fsb.co.za. Bonds - External Standard SE-FS-05 Revision: 3 Page 4 of 12 Effective 28 November 2016 c) A list of South African registered banks (locally controlled) can be found at www.resbank.co.za d) Only one (1) bond and / or addendum may be furnished to secure the risk per functionality and / or the limit required. In other words a client cannot have a bond from financial institution X and another from financial institution Y both for the same warehouse bond. e) Only an addendum registered with the same financial institution as the original bond it relates to must be accepted. f) The client is responsible for informing the SARS immediately if any information on a bond e.g. financial institution, director, etc. has changed. g) Under no circumstances will bonds from foreign banks be accepted. h) It is the prerogative of the Commissioner for the SARS that if any client is non-compliant over a period of six (6) months, a bond can be enforced or the bond amount can be increased. i) Bonds and addendums which were registered before the effective date of this document will remain effective and are not required to be replaced unless there is any legal requirement, such as a change in the conditions or an increase of bond amounts. For this purpose the following bond numbers apply: Bond Header Description i) General Bond: for Approved Warehouse ii) Addendum to Customs and Excise Bond iii) Bond: General iv) Bond: Manufacture of Excisable Products v) Customs and Excise Bond: Excise Rebates Bond number DA 108 DA 109 DA 110 DA 111 DA 112 2.3 Change in legal status of a company a) The following are regarded as changes in legal status and a new bond must be obtained: i) ii) iii) iv) Change in the name of a company; for example a company originally furnished a bond with the name and identity ABC Close Corporation. Six (6) months later the company decided to change its name to XYZ Close Corporation. Therefore, the company has undergone a change in name from ABC to XYZ; Change in legal identity of a company; for example a company declares the name and identity on the surety bond as ABC (Pty) Ltd., a private company. The company decides to list on the Johannesburg Stock Exchange (JSE) and converts its identity to ABC LTD., a public company. Therefore, the company has undergone a change in legal identity from (Pty) Ltd., a private company to LTD., a public company; Mergers of companies; or Takeovers of companies. b) An addendum (EA01 / EA02) may not be utilised for any changes in legal identity. c) If there is a change in legal identity, change of ownership, etc. the client must be requested to complete the applicable application form and annexure as prescribed in the rules. d) The client must be given a period of thirty (30) calendar days to produce a replacement bond. e) All activities will be cancelled if no replacement bond is received within the prescribed period after additional time was allowed. f) The licensing and registration policy must be adhered to in cases of legal changes as well as to manage/maintain Legal Entity profiles and amendments (Refer to SE-FS-02, SE-FS-21 and ECS-LER03). Bonds - External Standard SE-FS-05 Revision: 3 Page 5 of 12 Effective 28 November 2016 2.4 Request for increase or decrease of bond amount a) Any Excise team may motivate for i) ii) Security when the security has been waived; or The increase or decrease of an existing bond. b) A client may inform the B/O of his / her re-calculation of the standard bond amount with the request to decrease the amount of security accordingly. On receipt of such an application the B/O will forward it to the ELRCC for consideration. c) The addendum (EAO1) must be signed by duly authorised Officers of the principal and of the financial institution. It must also clearly identify the bond to which it refers, including the name of the financial institution, the number of the bond, the date of issue, the name of the principal and the amount for which the bond has been issued. d) If a bond must be increased the ELRCC administrator will inform the client accordingly. A new bond or addendum must be presented to the B/O within thirty (30) calendar days. e) The bond amount can only be decreased after the vetting process has been followed and the risk identified. An application for the decrease of the bond amount must be treated as follows: i) ii) f) Secured amount is supported by a bond and an addendum: A) The applicant may apply for the decrease of the secured amount up to the full amount of the addendum. In this case the addendum must be cancelled if all obligations there under have been met; or B) The applicant may apply for the decrease of the secured amount up to the full amount of the addendum and a portion of the bond. In this case a new bond with a new secure amount must be presented by the client where after the original bond and addendum must be cancelled if all obligations there under have been met. Secured amount is only supported by a bond - A new bond with the decreased amount must be presented by the client where after the original bond will be cancelled if all obligations there under have been met. On receipt of such replacement bond, the procedures stipulated in paragraph 2.1(d) must be followed. 2.5 Notice of cancellation and withdrawal of a bond a) A bond may be cancelled in the following instances: i) ii) iii) i) ii) iv) On notice of cancellation by the licensee or registrant; When the financial institution gives notice in writing of withdrawal of the bond; When the licensee or registrant has undergone a change in legal identity; When the licensee or registrant has defaulted, is unable to meet its obligations and the SARS deems it necessary to cancel the licence or registration or a specific functionality; When the SARS deems it necessary to cancel such licensing / registration; and / or When the SARS deems that the client’s risk does not warrant security anymore. b) A person, who has no further use for the licenced or registered premises, may apply to the B/O for the cancellation of such facility. As a result, all bonds furnished for such activities may also be cancelled. c) Notice of withdrawal of a bond by a financial institution: i) ii) In terms of Rule 120.09 any person who has furnished a bond may give the Commissioner thirty (30) calendar days’ notice of withdrawal of such bond. The thirty (30) calendar days period must commence from the date of receipt of the notification of withdrawal from the financial institution by the SARS and not from the date of the notification to the client. After the expiry of the thirty (30) calendar day’s period, no new obligations can accrue under the bond concerned. However, the financial institution remains responsible for transactions entered into prior to the expiry of the bond. If the financial institution gives notice to withdraw the bond, the client must furnish a new bond prior to the cancellation of the current bond or else the Bonds - External Standard SE-FS-05 Revision: 3 Page 6 of 12 Effective 28 November 2016 functionality will be cancelled with the bond. Such replacement bond will only become effective on the date following the cancellation date of the previous bond. d) The client type may be temporarily suspended in order to allow the client additional time to obtain a replacement bond. The additional time period cannot exceed another thirty (30) calendar days after the cancellation date of the previous bond. 2.6 Breach of conditions covered by a bond a) When the conditions for which a bond has been furnished are not met, the SARS will withhold a sufficient portion of the bond to cover the outstanding amount payable. b) After reasonable attempts have been made to collect from the principal debtor, relevant documentation to substantiate the claim and a request for payment of the actual amount to be paid by the financial institution will be made to the financial institution concerned with a copy to the principal debtor. 2.7 Keeping of records a) Every client must keep for record purposes for a period of five (5) years: i) ii) Books, accounts and documents in respect of all transactions relating to the Rules for the purpose of any acquittal procedure; and Any data related to such documents created by means of a computer. b) The five (5) year period is calculated from the end of the calendar year in which the document was created, lodged or required (Sections 101 and 101A). c) Every client must produce such books, accounts and documents on demand. d) Original bonds and addendums must be kept by the SARS Head Office in a safe until a request for cancellation thereof by the financial institution, the client or the requesting team has been approved after which the original cancelled bond and / or addendum will be returned to the financial institution. Copies of these documents must be kept for record purposes. e) The ELRCC administrator must file the original bonds and addendums in the safe in an alphabetical order per bond type. 2.8 Penalties a) Failure to adhere to the provisions of the Act, as set out in this document, is considered an offence. b) Offences may render the client liable to, as provided for in the Act: i) ii) iii) Monetary penalties; Criminal prosecution; and / or Cancellation / Suspension of a license / registration. 2.9 Appeal against decisions a) In cases where clients are not satisfied with any decision taken in terms of the Act they have a right of appeal to the relevant appeal committee. The policy in this regard, as well as the process to be followed, is contained in document SC-CC-24. b) Should clients not be satisfied with a decision of any appeal committee, their recourse will be to lodge an application for ADR (Alternative Dispute Resolution) with the relevant appeal committee. The committee will add its comments thereto and forward the application to the ADR Unit for consideration. The policy in this regard, as well as the process to be followed, is contained in document SC-CC-26. Bonds - External Standard SE-FS-05 Revision: 3 Page 7 of 12 Effective 28 November 2016 2.10 Determining the need for security a) The SARS may call for security or increase (or allow a decrease) in an existing security amount from any prospective or existing client at any time (i.e. upon application for licensing / registration or subsequent thereto) when deemed necessary based on assessed risk. b) In the event that the ELRCC decides to approve a license / registration, but such approval is subject to the determination of a BOND, such bond must be lodged by the client once he / she has been informed thereof by the ELRCC in writing of which a copy thereof will be forwarded to the relevant B/O. c) The ELRCC administrator will then update RAS with the relevant details of the approval of the client’s application (including bond details). 2.11 Receipt of a bond / addendum a) The client submits the completed bond / addendum and supporting documents to the Excise Assurance Officer (EAO) or other appointed Officer at the B/O where he / she conducts business. b) The client must submit his / her original signed bond / addendum together with a copy of the letter originally forwarded to him / her by the ELRCC administrator requesting a bond or addendum indicating the amount. c) If the bond document(s) is found to be in order, the original bond document(s) will be forwarded to the SARS Head Office. d) The ELRCC administrator will acknowledge receipt of the original bond or addendum. e) The client must keep a copy of the completed and signed bond / addendum for record purposes. 2.12 Verification of bonds / addendums and supporting documents a) The ELRCC administrator will determine if the bond or addendum is completed correctly and verify the validity thereof. b) If not completed correctly or invalid, the original bond or addendum will be rejected and a notification for correction will be sent to the B/O with reasons for the necessary corrective action required. c) The bond / addendum must be stamped to indicate the date when it was issued by the financial institution. d) The ELRCC administrator will ensure that: i) ii) iii) iv) v) vi) vii) viii) ix) x) xi) Only the SARS approved and published forms are accepted for bond / addendum registration. The bond / addendum has been issued by a South African registered bank or an insurer registered with the Financial Services Board (FSB) for the purpose of issuing bonds. Bonds / addendums issued by foreign registered banks are not acceptable. The terms and conditions i.e. the wording as contained in the bond / addendum document has not been altered or changed. The lawfully delegated principal representative’s names as per the resolution or consent in writing appear on the bond / addendum. This means that all new transactions will be processed against the new bond whilst the B/O must ensure, within thirty (30) days that all obligations recorded against the cancelled bond (old bond) have been met. The full names of the representatives and their designations of the individuals authorised to sign on behalf of the principal and financial institution appear on the bond / addendum. A signatory signs in his / her own capacity and not on behalf of someone else. The signatures of two (2) witnesses are present for each signature of the individuals authorised to sign the bond / addendum on behalf of the principal and financial institution. Any alterations to the bond or addendum are initialled by all signatories including witnesses. The corporate seal (stamp) of the financial institution is impressed on the bond / addendum. Bonds - External Standard SE-FS-05 Revision: 3 Page 8 of 12 Effective 28 November 2016 xii) xiii) xiv) The reference number from the financial institution is inserted on the bond /addendum. No correction fluid has been used on the bond / addendum. The financial institution on both the bond / addendum corresponds. An addendum to a bond may not be accepted if underwritten by two (2) different financial institutions. e) The representative(s) whose names(s) appear on the original resolution passed at a meeting of the board of directors or the express consent of the close corporation will be the only person(s) authorised to sign the bond / addendum. f) All signatories on the bond / addendum must correspond with the listed names indicated as authorised representative(s) on the resolution or letter of consent. g) Authorised representatives and their witness(s) whose names(s) appear on the bond / addendum must initial next to each correction on the bond / addendum as well as at the bottom of each page of the bond / addendum except for the last page where the original signatures of the representatives and witnesses must appear. h) If an addendum (EA01 / EA02) is lodged, it must clearly identify the bond to which it refers, including the name of the financial institution, the bond number, the date of issue and the name of the principal and the amount by which the bond is increased or decreased. 2.13 Registration of the bond or addendum a) After the ELRCC has approved the bond, the administrator will continue to register the bond or addendum on the system. b) The ELRCC administrator will: i) ii) iii) iv) Complete the bond register with the bond / addendum details; File the original bond together with the resolution in an alphabetical order per bond type in the safe; Attach the original addendum to the original bond in the safe; Draft the applicable letter to the client informing him / her that the bond / addendum has been registered and a copy of such letter must be sent to the relevant B/O. 2.14 Cancellation of a bond / addendum a) When the financial institution notifies the SARS of its intent to withdraw as surety provider, the ELRCC administrator will acknowledge receipt of this notification and inform the client of this intent within three (3) working days. b) In such instances, the client must apply for a new bond as prescribed in paragraph 2.1 above and the ELRCC administrator will ensure that a new bond is registered before the existing bond is cancelled. c) Should the client fail to supply a new bond within thirty (30) days, the client’s license / registration will be cancelled. d) If all is in order, the ELRCC administrator will: i) ii) iii) iv) v) Draft a cancellation letter to the client and financial institution; Retrieve the original bond / addendum and endorse it with the word CANCELLED and the cancellation date; Attach the original cancelled bond / addendum to the letter addressed to the financial institution and a copy thereof to the letter addressed to the client; Attach the original clearance certificate and a copy of the cancelled bond / addendum to the copy of the letter addressed to the client and file in the client’s correspondence file; and Send a copy of the letter to the B/O. Bonds - External Standard SE-FS-05 Revision: 3 Page 9 of 12 Effective 28 November 2016 2.15 Withdrawal / replacement of security a) If the financial institution gives the SARS notice of withdrawal, the B/O must inform the client of the financial institution’s intent of withdrawal and forward an acknowledgement to the financial institution. b) If no new bond has been received within thirty (30) calendar day’s period or extended period as arranged with the B/O, the applicable request will be cancelled. c) Such replacement bond will only become effective on the date following the system’s cancellation date of the previous bond. This means that all new transactions will be processed against the new bond whilst the B/O must ensure, that within thirty (30) days, all obligations recorded against the cancelled bond (old bond) have been met 2.16 Breach of conditions a) When the conditions under which the client is licensed / registered are not met, and especially if the client fails to pay any amount due to the SARS on time, the SARS may consider calling up the bond. b) Depending on the circumstances, the full or a portion of the bond amount may be called for from the financial institution. c) The B/O must: i) ii) iii) iv) Notify the client and the applicable financial institution in writing that the outstanding debt is payable; Attach a copy of the bond and / or addendum to the original letter addressed to the financial institution; Attach a copy of the bond and / or addendum to the original letter addressed to the client; Pend the file for follow-up within fourteen (14) days. d) On receipt of the request for the call up of a bond the ELRCC administrator will deactivate the bond on the applicable system in order to prevent any further transactions to be processed. e) When the debt has been settled by the financial institution the bond will be cancelled. f) The bond amount can constitute the full amount or partial amount which must be collected from the financial institution. 3 RELATED INFORMATION 3.1 Legislation TYPE OF REFERENCE Legislation and Rules administered by SARS: Other Legislation: International Instruments: Bonds - External Standard SE-FS-05 REFERENCE Customs and Excise Act No. 91 of 1964: Sections 54E(4), 59A(2)(a), 60(1)(c), 61(1) and (2), 64B(3), (4),64D(5), 64F(2)(c), 101 and 101A. Customs and Excise Rules: 18A.08, 18A.09, 19A.02 (a),19A4.08 (c), 20.17(b), 26.01 (f), 37A.14 (b), 54F.04 (a), 59A.07(2), 59A.08(2), 60.01(1) (e), 60.02(1) (d), 60.07(2), 64B.01(1,2,3,4), 64D.01(1,3) (c), 64D.04(1), 64D.09(4), 64D.10(5), 64D.11(5), 64D.13(9), 64D(19), 64F.02, 101.01 to 101.03(a), 101A.01 to 101A.12, 120.08 and 120.09. Promotion of Administrative Justice Act No. 3 of 2000: Section 3 None Revision: 3 Page 10 of 12 Effective 28 November 2016 3.2 Cross References DOCUMENT # QMS-01 ECS-LER-03 SC-CC-24 SC-CC-26 SC-SE-05 SE-FS-02 SE-FS-06-M01 SE-FS-21 DOCUMENT TITLE Quality Management System Manual Legal Entity – External Standard Internal Administrative Appeal – External Policy Alternative Dispute Resolution – External Policy Customs Bonds – External Policy Licensing – External Standard Completion of Bonds and Addendums – External Manual Registration – External Standard 3.3 Quality Records NUMBER Annexure A to Rule 54 F Annexure A to Rule 64 F DA 108 DA 109 DA 110 DA 111 DA 112 DA 185 EA01 EA02 EB01 EB02 EB03 EB04 EB05 4 TITLE Pro Forma Bond for Environmental Levy Pro Forma Bond for a Licensed Distributor of Fuel General Bond for Approved Warehouses Addendum to Customs and Excise Bond Bond: General Bond: Manufacture of Excisable Products Customs and Excise Bond: Excise Rebates Application form: Registration / Licensing of Customs and Excise Clients Excise Addendum: Amend Bond Amount Excise Addendum: Distributor of Fuel Excise Bond: Distributor of Fuel Excise Bond: Environmental Levy th Excise Bond: Rebates (6 Schedule) Excise Bond: Manufacturer of Excisable Products Excise Bond: Warehouse (OS & SOS) DEFINITIONS AND ACRONYMS Act B/O CIPC Commissioner CRA EAO ELRCC Financial Institution FSB LDF OPS Manager OS Person PP’s ROLE (RACI) Responsible Accountable Consulted Informed SARS SOS Surety Surety Bond VAT Bonds - External Standard SE-FS-05 Customs and Excise Act, No. 91 of 1964 Branch Office Companies and Intellectual Property Commission Commissioner for the SARS Customs Research and Analysis Excise Assurance Officer Excise Licensing, Registration and Cancellation Committee Banking or Insurance institution approved by the Financial Services Board Financial Services Board Licensed Distributor of Fuel Operations Manager Storage Warehouse Includes a company, close corporation, co-operative society, firm, partnership, statutory body or club Provisional Payments This role conducts the actual work or owns the problem. This role approves the completed work and is held fully accountable for it. This role may be consulted during the process. This role is to be informed of the progress and or results. South African Revenue Service Special Storage Warehouse A guarantee, in the form of a bond obtained from an approved financial institution, to cover any possible risk to / loss of Excise revenue due to client behaviour An official surety bond issued by an approved financial institution Value-Added Tax Revision: 3 Page 11 of 12 Effective 28 November 2016 5 DOCUMENT MANAGEMENT Business Owner Document Owner Author Detail of change from previous revision Template number and revision Bonds - External Standard SE-FS-05 Executive: Excise Investigative Audit Executive: Governance Linda Dellieu Reference numbers to the bond forms have been amended; The governance process for the safekeeping of bonds is now dealt with at SARS Head Office; and Complete review of the document. ECS-TM-15 – Rev 7 Revision: 3 Page 12 of 12
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