THE HIGH COURT REVENUE 2009 No. MCA
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- Shannon Crawford
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1 THE HIGH COURT REVENUE 2009 No. MCA IN THE MATTER OF SECTION 908 OF THE TAXES CONSOLIDATION ACT 1997 (AS SUBSTITUTED BY SECTION 207(I) OF THE FINANCE ACT, 1999) BETWEEN: Principal Officer (Name redacted) Applicant - and - Financial Institution (Name of Financial Institution redacted) Respondent AFFIDAVIT OF Principal Officer (Name redacted) I, ZZ, Officer of the Revenue Commissioners, of the Offshore Assets Group, Investigations and Prosecutions Division, Ashtowngate, Navan Rd, Dublin 15, aged eighteen years and upwards MAKE OATH and say as follows:- 1. I am a Principal Officer attached to the Offshore Assets Group of the Investigations and Prosecutions Division of the Office of the Revenue Commissioners and am the Applicant in these proceedings. I make this affidavit from facts within my knowledge save where otherwise appears and where so otherwise appearing I believe same to be true. 2. I am an Authorised Officer, as defined in Section 906A of the Taxes Consolidation Act, 1997, for the purposes of Section 908 thereof (as inserted and substituted by Section 207 of the Finance Act, 1999). I beg to refer to a copy of my Authorisation dated 2 November 2001, upon which marked ZZ1 I have endorsed my name prior to the swearing hereof. I further beg to refer to the consent in writing from a Revenue Commissioner dated 10 th November 2009 consenting to the making of this application, upon which marked ZZ2 I have endorsed my name prior to the swearing hereof.
2 This application 3. The Offshore Assets Group (OAG) was set up by the Revenue Commissioners in 2001 to identify Irish residents seeking to evade taxes using offshore accounts. In February 2004 Revenue launched a voluntary disclosure scheme for Irish residents holding undisclosed funds in offshore accounts. This initiative was launched following two earlier investigations relating to subsidiaries of Irish financial institutions operating in the Isle of Man and Jersey. These two earlier investigations resulted in payments to the exchequer of 150m. Arising from the general voluntary disclosure scheme, the two earlier investigations and the follow-through investigations the total amount paid to the exchequer from these enquiries and investigations exceeds 945m. It is clear from these figures that substantial funds were placed offshore by Irish residents to conceal untaxed income. 4. The purpose of this application is to obtain information on the movement of funds to and from this State relating to the jurisdictions of Switzerland, Liechtenstein, the Isle of Man, Jersey and Guernsey. Bank secrecy was, until very recent times, a feature in both Switzerland and Liechtenstein and neither jurisdiction permitted an exchange of information with other jurisdictions where assistance was required for criminal investigations relating to tax evasion. However, both jurisdictions have very recently committed to adopting OECD standards for exchange of information for tax purposes. In the case of Liechtenstein the Government issued a Declaration on 12 March 2009 committing to adopting the global standards on transparency and exchange of information. Following this commitment Liechtenstein was removed from the list of uncooperative tax havens by the OECD. I beg to refer to true copies of the Declaration and the OECD statement on which marked ZZ3 and ZZ4 respectively I have endorsed my name prior to the swearing hereof. On 13 March 2009 Switzerland agreed to adopt the OECD standard on administrative assistance in fiscal matters and in a statement issued on 15 March 2009 by the OECD this was regarded as a significant step forward in international tax co-operation. I beg to refer to true copies of the said statements from the Swiss Government and the OECD on 2
3 which marked ZZ5 and ZZ6 respectively I have endorsed my name prior to the swearing hereof. 5. In relation to the jurisdictions of the Isle of Man, Jersey and Guernsey the vast bulk of the settlements made by Irish residents arose from accounts maintained in these jurisdictions and the majority of the accounts were maintained in the offshore entities of Irish financial institutions. I estimate that at least 750m of the settlements received arose from accounts held in those jurisdictions. In previous applications made to this Honourable Court authorised officers of the Revenue Commissioners sought and were granted Orders relating to the transfers to and from the offshore entities of Irish financial institutions. This application is seeking details of transfers to and from these jurisdictions where funds were held in non-irish owned financial institutions operating in those jurisdictions. OECD and other international reports on tax havens 6. The issue of tax havens and the effect they have on developed economies has come to the fore in international forums in recent times. In 1998 the OECD published a document Harmful Tax Competition: An Emerging Global Issue. I beg to refer to a true copy of the said document upon which marked ZZ7 I have endorsed my name prior to the swearing hereof, which set out four criteria for identifying jurisdictions engaged in harmful tax competition. 7. Switzerland was one of two jurisdictions that abstained from adopting the report and specifically stated it was not bound by recommendations contained therein. 8. Arising from the above report, the OECD published a report in 2000 Towards Global Tax Co-operation. I beg to refer to a true copy of that report upon which marked ZZ8 I have endorsed my name prior to the swearing hereof, which identified 35 jurisdictions, which included the Isle of Man, Jersey and Guernsey, as meeting the OECD criteria as engaged in harmful tax competition. All of these jurisdictions have now 3
4 engaged with the OECD and have made commitments to transparency and effective exchange of information. 9. In seeking access to bank information in foreign jurisdictions, the Revenue Commissioners are concerned not only with ensuring that tax is correctly paid on interest earned but also in ensuring that the underlying funds have been correctly declared for tax purposes. I beg to refer to a true copy of Council Directive 2003/48/EC on taxation of savings income in the form of interest payments and, for convenience, marked ZZ9 I have endorsed my name prior to the swearing hereof. The Directive seeks to ensure that tax is paid on interest earned in jurisdictions which are subject to the Directive either by a withholding tax or through an exchange of information. All EU Member States together with their dependent territories and Andorra, San Marino, Monaco, Liechtenstein and Switzerland are subject to the terms of the Directive. The majority of EU Member States agreed to exchange information while a majority of the dependent territories, which traditionally would be viewed as tax havens, opted for a withholding tax. Switzerland, Liechtenstein, the Isle of Man, Jersey and Guernsey adopted the withholding tax option. The Isle of Man has committed to abandoning the withholding tax option and to engage in exchange of information with effect from 1 July I beg to refer to a true copy of the Isle of Man statement upon which marked ZZ10 I have endorsed my name prior to the swearing hereof. 10. At the OECD level, running in parallel with the work on Harmful Tax Competition, the OECD published a report in 2000 Improving access to Bank Information for Tax Purposes. I beg to refer to a true copy of that report upon which marked ZZ11 I have endorsed my name prior to the swearing hereof. In this report it was stated that all member countries should permit access to bank information, directly or indirectly, for all tax purposes, so that tax authorities can fully discharge their revenue raising responsibilities and engage in effective exchange of information with their treaty partners. In relation to member states progress reports on access to bank information were prepared in 2003 and At the launch of the 2007 progress report it was stated that significant restrictions on access to bank information for tax purposes remain in 4
5 three OECD countries (Austria, Luxembourg and Switzerland) and in a number of offshore financial centres (e.g. Cyprus, Liechtenstein, Panama and Singapore). I beg to refer to a true copy of the said statement dated 12 October 2007 upon which marked ZZ12 I have endorsed my name prior to the swearing hereof. 11. Although recent developments in both Switzerland and Liechtenstein are welcome information from both jurisdictions will be only be available on a prospective basis. Information in respect of past transactions will not be made available. The extensive experience of the Revenue Commissioners of investigating tax evasion and in particular, the use of offshore bank accounts to facilitate evasion by Irish taxpayers of tax properly due and payable in Ireland indicates that tax evasion occurred over an extended period in the past. It is for that reason that the within application is brought as recent changes on the exchange of information will not be of assistance to the Revenue Commissioners in their investigations of past tax evasion. The US and German Experience 12. In July 2008 a committee of the United States Senate published a report Tax Haven Banks and U.S. Tax Compliance, a copy of the report is attached upon which marked ZZ13 I have endorsed my name prior to the swearing hereof. The report stated that it was estimated that the United Stated loses $100 billion in tax revenue each year due to offshore tax abuses (page 1 of the report). The report focused on the activities of two banks, LGT Bank which is a Liechtenstein Bank and UBS, a Swiss Bank entity. In relation to LGT Bank the report stated that LGT practices contributed to a culture of secrecy and deception that enabled LGT clients to use the bank s services to evade U.S. taxes, dodge creditors and ignore court orders (page 36). In relation to the activities of UBS the report found: From at least 2000 to 2007, UBS made a concerted effort to open accounts in Switzerland for wealthy U.S. clients, employing practices that could facilitate, and have resulted in tax evasion by U.S. clients. These UBS practices included maintaining for an 5
6 estimated 19,000 U.S. clients undeclared accounts in Switzerland with billions of dollars in assets that have not been disclosed to U.S. authorities (page 81). 13. On 18 February 2009, it was announced by the U.S. Securities and Exchange Commission that UBS agrees to pay fines totalling $780m arising from UBS s conduct which facilitated the ability of certain U.S. clients to maintain undisclosed accounts in Switzerland and other foreign countries which enabled those clients to avoid paying taxes related to the assets in those accounts. I beg to refer to true copies of the SEC press release and litigation release upon which marked ZZ14 and ZZ15 I have endorsed my name prior to the swearing hereof. 14. In early 2008, the German authorities obtained access to a list of German residents holding accounts in Liechtenstein. A large scale investigation ensued which has resulted in 110m being recovered by the German exchequer. I beg to refer to a true extract from Deutsche Welle upon which marked ZZ16 I have endorsed my name prior to the swearing hereof. Offshore Assets Group 15. Finally, I wish to refer back to work of the Offshore Assets Group in this State. In 2003 an investigation was about to commence to identify Irish settlers who had settled untaxed funds in a Jersey subsidiary of an Irish financial institution. In order to obtain the benefits of a voluntary disclosure under the Irish tax code persons holding funds in the Jersey subsidiary were required to submit a Notice of Intention to make a voluntary disclosure on or before 1 June 2003 the date of commencement of the investigation. Having submitted a Notice of Intention these persons had a further 60 days to prepare and submit a computation and payment in relation to the outstanding taxes owed. 6
7 16. Prior to the 31 May deadline date advertisements were placed on the front page of the Irish Times by Credit Suisse First Boston. I beg to refer to a true copy of the advertisement from the Irish Times edition of 29 May 2003 upon which marked ZZ17 I have endorsed my name prior to the swearing hereof. The advertisement asks Moving your offshore account? We can find a home from home. The Swiss flag was prominently displayed in the advertisement which ran for three days prior to the deadline date. 17. I consider the advertisements were a blatant attempt to frustrate the enquiry by the Revenue Commissioners in seeking to identify Irish settlers with funds in Jersey. In the subsequent investigation it emerged that a number of trust had moved their funds to Credit Suisse entities. 18. As I explained above, the investigation of the Offshore Assets Group have uncovered extensive tax evasion by Irish residents using financial institutions in the Isle of Man, Jersey and Guernsey resulting in payments to the exchequer of 750 million. 19. Arising from Revenue s recent offshore investigation a significant number of settlements have been made with persons who held or have held accounts in Switzerland. The following list of 22 settlements totalling some 22m, which would not include all settlements, establishes that undisclosed accounts were maintained in Switzerland with a view to evading tax. 7
8 The original affidavit contained redacted details of the 22 settlements. They were described as Case A, Case B etc. These details have been further redacted as they included details of the overall settlements which could be used in conjunction with the Defaulter s List to identify individuals. A summary of the settlements has been included below instead: Settlement No. of Cases Country Total Range > 500, Switzerland 19.87m < 500, Switzerland 2.57m Totals 22 Switzerland 22.44m 20. It is clear from the various reports and documentation attached to this affidavit that bank secrecy was a significant feature in both Liechtenstein and Switzerland. Neither jurisdiction was able or willing to engage in an exchange of information with other jurisdictions where tax evasion was suspected. It is also clear from the reports that significant funds are held in offshore tax havens. The OECD had identified Liechtenstein as an un-cooperative tax haven. In relation to Switzerland the German Finance Minister in October 2008 argued that Switzerland should be placed on the list of tax havens by the OECD. I beg to refer to a true copy of an extract from Bloomberg.com upon which marked ZZ18 I have endorsed my name prior to the swearing hereof. From my experience of investigation the use of offshore bank accounts by Irish residents to facilitate tax evasion, I say and believe that it is probable that, just as Irish residents used accounts and trust structures in Switzerland, the Isle of Man, Jersey and Guernsey to evade taxes, similar transactions occurred with Lichtenstein. 21. I say and believe that the experience of the Revenue Commissioners in investigating offshore assets confirms that offshore bank accounts were used by Irish residents to evade tax and in particular, to evade underlying tax and not merely tax that might have otherwise have fallen due on interest or investment income on sums placed offshore. The experience of the Revenue Commissioners and, of course, my own 8
9 personal experience is that such offshore accounts and similar financial facilities (such as insurance policies, trust structures) were used to evade Irish tax otherwise payable on the profits of companies and individuals with the result that in addition to the corporation tax and/or income tax that might have otherwise been paid, other taxes - such as VAT, CAT, CGT and stamp duty - were similarly evaded. The amounts recovered under the various Revenue investigations (and referred to earlier in this affidavit) make clear that the sums involved are substantial such that a serious prejudice would arise to the Exchequer if the sums were not recovered. Reliefs sought 22. This application is made to ascertain the identity of Irish residents holding accounts in either Liechtenstein or Switzerland. In addition, the application also seeks to identify Irish residents which hold or held accounts in non-irish owned financial institutions in the Isle of Man, Jersey and Guernsey. I beg to refer to the Appendix attached to the Affidavit when produced. As appears therefrom, the Order that is sought herein is for the furnishing of specified information as defined in the Appendix to this Affidavit. It is also sought that the Respondent makes available for inspection (including copying) any documents or records from which the information is obtained. 23. The Order requires the Respondents to identify transfers, as defined, to or from this State concerning Liechtenstein, Switzerland, the Isle of Man, Jersey and Guernsey save to the extent that the information concerning that transfer has already been provided under the terms of a previous High Court Order. Where a transfer was made, the Order requires the Respondent to advise of the names(s), addresses(es) and account number(s) of the remitter(s) where same is known to the Respondent, the date of the transfer, the amount of the transfer and currency of the transfer, the name and address and account number of the person who received value for the transfer where same is known to the Respondent, the name and address and sort code of the remitting financial institution from which the transfer was made, the name, address and sort code of the financial institution which ultimately received the value of the transfer 9
10 and all references assigned to the transfer. Similar information is required in relation to Specified Information as defined and Collections as defined. 24. All this information ought to be in possession of the Respondent and held by the Respondent in the ordinary course of its business, such that complying with any Order would not be unduly onerous. Having regard to my belief that monies transferred to these jurisdictions may relate to monies on which tax has been evaded in this State I believe that this information and the underlying documents will include or contain information relevant to the tax liability of a number of taxpayers. 25. Having regard to the foregoing I am satisfied that:- (a) there are reasonable grounds for suspecting that all or any one of the persons falling within the class of taxpayer, being the owners of monies transferred to or from Liechtenstein, Switzerland, the Isle of Man, Jersey and Guernsey may have failed or may fail to comply with any provisions of the Acts; (b) any such failure is likely to have led or to lead to serious prejudice to the proper assessment or collection of tax (having regard to the amount of a liability of all or any one of the persons within the specified class that arises or might arise from such failure); and (c) the information which is likely to arise from the information and particulars to which this application relates and which is likely to be contained in the books, records or other documents to which this application relates is relevant to the proper assessment or collection of tax. 26. Accordingly, I pray this Honourable Court for an Order pursuant to Section 908 of the Taxes Consolidation Act, 1997 (as amended) for relief in terms of the notice of motion herein. SWORN by the said ZZ 10
11 this day of 2009 at in the City of before me a Commissioner for Oaths/Practising Solicitor and I know the Deponent. Commissioner for Oaths / Practising Solicitor This affidavit is filed on behalf of the Applicant by Frances Cooke, Revenue Solicitors, Ship Street Gate, Dublin Castle, Dublin 2. Filed on the day of
12 APPENDIX thereto:- The following capitalised terms shall have the meanings ascribed Collections means all payment advice instructions in electronic format, known as SWIFT, where an MT400 was made, using the facilities of the Respondent in the State, to or from any or all of the jurisdictions of Switzerland, Liechtenstein, the Isle of Man, Jersey and Guernsey and was in the sum equal to or exceeding 6,350 or IR 5,000 or a foreign currency equivalent [calculated by reference to the exchange rate against the Irish pound as at 31 December 2001] relating to customers of the Respondent whose customer information file maintained by the Respondent records them as having an address in the State or relating to other financial institutions operating in the State save to the extent that information concerning the collections has already been provided to the Revenue Commissioners or any authorised officer thereof under the terms of a previous High Court Order. Specified Information means all cash letters, for a sum equal to or exceeding 6,350 or IR 5,000 or a foreign currency equivalent, issued between the Respondent and financial institutions operating in any or all of the jurisdictions of Switzerland, Liechtenstein, the Isle of Man, Jersey and Guernsey. All drafts issued by the Respondent in a sum equal to or exceeding 6,350 or IR 5,000 or a foreign currency equivalent on accounts maintained by the Respondent in the jurisdictions Switzerland, Liechtenstein, the Isle of Man, Jersey and Guernsey. All drafts issued by financial institutions operating in Switzerland, Liechtenstein, the Isle of Man, Jersey and Guernsey, drawn on their accounts maintained with the Respondent, and was in a sum equal to or exceeding 6,350 or IR 5,000 or a foreign currency equivalent, relating to lodgments or withdrawals to or from accounts maintained by the Respondent in the State, relating to customers of the Respondent, whose customer information file maintained by the Respondent records them as having an address in the State or relating to other financial institutions operating within the state, whether in a single or multiple lodgment, or withdrawal by cheque, draft, or cash or any combination thereof where the 12
13 individual lodgment or withdrawal was in a sum equal to or exceeding 6,350, IR 5,000 or a foreign currency equivalent save to the extent that information has already been provided to the Revenue Commissioners or any authorised officer thereof under the terms of a previous High Court Order. Transfers means all payment instructions in electronic format, known as SWIFT, where a payment instruction was made, using the facilities of the Respondent in the State, excluding transfers on the wholesale market namely bank to bank, to or from the Respondent and any or all of the jurisdictions Liechtenstein, Switzerland, the Isle of Man, Jersey and Guernsey and was in a sum equal to or exceeding 6,350 or IR 5,000 or a foreign currency equivalent relating to customers of the Respondent whose Customer Information File maintained by the Respondent records them as having an address in the State or relating to other financial institutions operating within this State save to the extent that information concerning the transfer has already been provided to the Revenue Commissioners or any authorised officer thereof under the terms of a previous High Court Order. The Applicant seeks an order pursuant to section 908(5) Taxes Consolidation Act 1997, as amended, by requiring the Respondent to furnish to the Applicant in relation to Transfers, Specified Information and Collections :- A. furnish to the Applicant from books, records or documents maintained by the Respondent or from books, records or documents to which the Respondent has access the following particulars concerning Transfers, Specified Information or Collections. (I) in relation to Transfers, provide such information, explanations and particulars where the same is known to the Respondent in respect of:- 1. the name(s) and address(es) and account number(s) of the remitter(s) where known to the Respondent; 13
14 2. the date of the transfer; 3. the amount of the transfer and the currency of the transfer; 4. the name, address and account number of the person who received the value for the transfer where known to the Respondent; 5. the name and address and sort code of the remitting financial institution from which the transfer was made; 6. the name, address and sort code of the financial institution which ultimately received the value for the transfer; 7. all references assigned to the transfer. B. provide such information, explanations and particulars where the same is known to the Respondent concerning: (I) each and every draft issued by the Respondent on accounts maintained by the Respondent in the jurisdictions of Switzerland, Liechtenstein, the Isle of Man, Jersey of Guernsey. 1. the number assigned to the draft, the name, address and sort code of the financial institution where the draft was purchased and the name, address and account number of the person who purchased the draft where known to the Respondent; 2. the payee of the draft; 3. where the purchaser of the draft is unknown, details of the components of the purchased draft or any 14
15 combination of either cheque and/or cash to specify the component parts and in relation to the cheque(s) to state the payee on the cheque, the account number, sort code and cheque number and where known to the Respondent and the name and address of the drawer; 4. the date on which the draft was issued; 5. the amount and currency of the draft; 6. the name and address of the financial institution on which the draft was drawn. (II) each and every draft issued by financial institutions operating in the jurisdictions of Switzerland, Liechtenstein, the Isle of Man, Jersey or Guernsey drawn on accounts maintained by the Respondent the proceeds of which have been lodged to the account(s) held with the Respondent in the State or to other financial institutions operating within the State. 1. the number assigned to the draft; 2. the currency and amount of the draft; 3. the payee of the draft; 4. the name address and sort code of the financial institution who received value for lodgment; 5. the name, address and account number of the account holder(s) who received value for the lodgment, where known to the Respondent; 6. The name and address of the financial institution who issued the draft. 15
16 (III) concerning each and every cash letter issued by financial institutions operating in the jurisdictions of Switzerland, Liechtenstein, the Isle of Man, Jersey or Guernsey drawn on accounts maintained with the Respondent in the State or relating to other financial institutions operating within the State. 1. the name, address and account number of each person on whom the cheque is drawn where known to the Respondent; 2. the payee of the cheque/draft; 3. the amount and currency of the cheque/draft; 4. the name, address and sort code of the financial institution on whom the cheque is drawn; 5. the date the cheque/draft was issued; 6. the number assigned to the cheque/draft; 7. the name, address and sort code of the financial institution who ultimately received value for the cheque/draft where known to the Respondent; 8. where the cash letter included a draft issued by the Respondent to provide:- (a) the name address and sort code of the financial institution where the draft was purchased and the name and address and account number of the person who purchased the draft where known to the Respondent; (b) where the purchaser of the draft is unknown, details of the components of the purchased draft 16
17 or any combination of either cheque and/or cash to specify the component parts and in relation to the cheque(s) to state the payee on the cheque, the account number, sort code and cheque number and where known to the Respondent the name and address of the drawer. (c) where the cash letter included a draft issued by another financial institution operating within the State to provide the name, address and sort code of the financial institution who issued the draft, where known to the Respondent. (IV) concerning cash letters sent by the Respondent to financial institutions operating in Switzerland, Liechtenstein, the Isle of Man, Jersey or Guernsey concerning lodgments the proceeds of which were credited to accounts maintained by the Respondent in the State. 1. the name, address and account number of the person(s) who ultimately received value of the cheque/draft and date of lodgment; 2. the name, address and sort code of the financial institution that ultimately received value for the lodgment; 3. cheque/draft number; 4. currency and amount of the cheque/draft; 5. the payee of the cheque/draft; 6. the name and address of the financial institution on which cheque/draft is drawn. C. provide such information, explanations and particulars where the same is known to the Respondent concerning: 17
18 (I) cheque collections received from financial institutions operating in the jurisdictions of Switzerland, Liechtenstein, the Isle of Man, Jersey and Guernsey in respect of the matters set out hereunder concerning cheques issued from accounts maintained by the Respondent in the State. 1. the name, address and account number of the account holder on which the cheque was drawn; 2. the name, address and sort code of the financial institution which issued the cheque; 3. the cheque number; 4. the currency and amount of the cheque; 5. the date the cheque was issued; 6. the payee of the cheque; 7. the name and address of the financial institution from whom the cheque collection was received. (II) cheques collections sent by the Respondent to financial institutions operating in the jurisdictions of Switzerland, Liechtenstein, the Isle of Man, Jersey or Guernsey in respect of the matters set out hereunder concerning lodgments to accounts maintained by the Respondent in the State. 1. the name, address and account number of the person(s) who ultimately received value of the cheque collection; 2. the name, address and sort code of the financial institution which ultimately received the value of the cheque collection; 18
19 3. the cheque number; 4. the currency and amount of the cheque; 5. the date of lodgment to the account; 6. the payee of the cheque; 7. the name and address of the financial institution to whom the cheque collection was sent. D. To provide to the Applicant on written request copies of or make available for inspection by the Applicant such of the books, records or other documents (as the term is defining section 906 of the Taxes Consolidation Act 1997) in the power, possession or procurement of the Respondent relating to the transfers, the specified information or collections, the subject matter of the order. E. provide, on the written request of the Applicant, copies of all correspondence both internal and external s, memoranda, notes of telephone conversations, notes on meetings, reports, submissions and evaluations held by the Respondent in relation to the Transfers, the Specified Information or Collections which are the subject matter of this Order. F. provide the information, explanations and particulars required hereby in such electronic or other format as may be agreed between the Applicant and the Respondent under paragraphs (A), (B) and (C) hereof in accordance with the following timetable (I) for the period 1 January 2007 to 31 December 2008, on or before 31 January 2010; 19
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