[EL] BOLOs, TAGs, and Drums
JBoppjr at aol.com
JBoppjr at aol.com
Sat Aug 10 05:21:08 PDT 2013
A c4 can engage in "substantial" political activity. Most election law
lawyers say 49% and the IRS grants a safe harbor for 40%.
So these c4s you reference could very well be operating perfectly legally.
But your point does reveal a problem with c4s applying in the first place.
What I have seen is exactly what you suggest should happen -- that the
IRS holds the application and then peppers the group with questions about
their ongoing activities to see if they are operating as a c4. 9 years in the
case of the Christian Coalition. Thus the IRS used the application as an
excuse to conduct an ongoing audit of the group's activities over 9 years.
Well, my advice to new c4 is to not apply for exemption since it is not
legally required, seems to provide no real benefit, and subjects the group to
all the partisan and illegal scrutiny now being exposed. Jim Bopp
Of course, the IRS says that a group should apply
In a message dated 8/9/2013 11:55:16 A.M. Eastern Daylight Time,
tpotter at capdale.com writes:
Another aspect of the IRS c 4 issue is the ( according to published
reports) number of groups that applied for exemption stating they would engage in
"no" campaign activities, and then engaged in very substantial political
activities. This would logically lead the IRS to think that it should look
for other indicators of likely campaign activities in applications for c 4
status, as the "political activities" question on the application was proving
an unreliable indicator of such activity.
Sent from my iPhone
On Aug 9, 2013, at 11:14 AM, "Mark Schmitt" <_schmitt.mark at gmail.com_
(mailto:schmitt.mark at gmail.com) > wrote:
There's a direct parallel to your farmers market story in the current
controversy -- that is, the inclusion of "open-source software" among the
"emerging issue" tags. A number of open-source projects (e.g. the Mozilla
Foundation, which produces Firefox) are organized as non-profits, which seems
reasonable since they give away their product and rely on volunteer efforts.
But many also sell support services. So the IRS seems to have been paralyzed
about whether these are legit non-profits, or the non-profit face of a
lucrative support business. After all, many for-profit entities use the same
structure -- free software, pay for support.
These non-political examples are good reminders that, faced with new
models and structures, the IRS has a hard time figuring out what to do. It
shouldn't, it's a pain and disruptive for organizations that just want to do
their work. But it's the reality -- not only across ideologies, but even
across non-political and political efforts. Electorally-heavy c(4)'s, or c(4)'s
linked to explicit electoral efforts such as "Tea Party," were also new
models, and apparently produced a similar confusion as open-source.
------ Original Message ------
From: "Legal Works of Marc Greidinger" <_mpoweru4 at gmail.com_
(mailto:mpoweru4 at gmail.com) >
To: "Trevor Potter" <_tpotter at capdale.com_ (mailto:tpotter at capdale.com) >;
"Joe La Rue" <_joseph.e.larue at gmail.com_ (mailto:joseph.e.larue at gmail.com)
>; "Smith, Brad" <_BSmith at law.capital.edu_ (mailto:BSmith at law.capital.edu) >
Cc: _law-election at department-lists.uci.edu_
(mailto:law-election at department-lists.uci.edu)
Sent: 8/8/2013 12:24:27 PM
Subject: Re: [EL] BOLOs, TAGs, and Drums
Several years ago, an organization beginning to put together local farmers
markets I was on the Board of applied for 501(c)(3) status. It had been
specifically encouraged to do this under a Department of Agriculture program
designed to promote farmers markets as a boon to local farmers, local
economies, and nutrition. The IRS apparently had not gotten the memo from the
Department of Agriculture, and papered the organization to death with
hundreds of written interrogatories and requests for production under tight
deadlines. We found out that the IRS was also doing this to many other similar
farmers market organizations, apparently out of some unknown IRS official’s
misguided belief that Farmers’ Market organizations were inherently
businesses posing as non-profits.
The IRS’s unofficial attitude toward farmers markets in general caused the
Farmer’s Market organization I was involved with to abandon its effort to
organize under 501(c)(3), even though, as far as I could tell, the
organization was of the kind that 501(c)(3) status was designed to help, and was
doing things consistent with public policies promoted by the Department of
Agriculture.
These BOLOs and “IRSgate” have always impressed me as similar stupidity
to the above, not conspiracy. The Republicans must be getting rather
frustrated at this point, having invested so much time and effort into trying to
connect the Obama Administration to a juicy scandal – hopefully against the
right – c to be foiled by a mundane explanation at every turn. But even in
the absence of conspiracy, if we are going to have (c)(4)s involved in
issue advocacy, it should not matter what type of organizations the “key words”
screening pulls out: any such screening is likely to chill, and will
disadvantage someone’s voice which is likely representing an interest, or
competing with someone elses. If we are going to maintain the advantages
organizations benefit from under (c)(4) there should be no such screening. A more
interesting question is whether in general it makes sense anymore for
issue advocacy organizations to enjoy the advantages available to them under
(c)(4), and whether issue advocacy orgs posing as (c)(3)s should continue to
benefit from tax advantages with so little critical IRS scrutiny.
Marc Greidinger
Attorney at Law
https://www.facebook.com/GreidingerLegalWorks?ref=br_tf
(703) 323-4661
From: _law-election-bounces at department-lists.uci.edu_
(mailto:law-election-bounces at department-lists.uci.edu)
[mailto:_law-election-bounces at department-lists.uci.edu_ (mailto:law-election-bounces at department-lists.uci.edu) ] On
Behalf Of Trevor Potter
Sent: Thursday, August 08, 2013 10:40 AM
To: Joe La Rue; Smith, Brad
Cc: _law-election at department-lists.uci.edu_
(mailto:law-election at department-lists.uci.edu)
Subject: Re: [EL] BOLOs, TAGs, and Drums
The scandal was supposed to be that IRS employees targeted conservative
groups because of their political beliefs. That is in fact a scandalous
accusation for what is supposed to be a non-partisan agency strictly above
politics and which needs the trust of the American people to function.
Joe LaRue says:
“And I continue to beat my drum and say: it doesn't matter whether it was
all conservative groups, or all progressive ones, or a mixture of each
that was targetted.”
I disagree. If it turns out that the IRS challenged both progressive and
conservative groups, delayed their c4 applications, put them in dead-end
piles, audited them after complaints were received, and general poorly managed
their status, then we have a completely different issue. If this turns out
to be the case—whether through “BOLOS” or “emergent issues”—then the
question becomes why did this happen. Was it from mismanagement,
understaffing, poor training or leadership, or an inability of the IRS to address the
status of highly political c4s under current rules and in the midst of a
partisan battleground where members of Congress of both parties are
regularly attacking the agency for favoring the other party? In other words, have
they just frozen in the midst of battle? That would be a scandal of
maladministration, not the political vendetta that has been alleged. Because, after
all, the IRS does HAVE to determine whether groups qualify for 501 c 4
status, and then whether they are in compliance with c 4 standards of conduct—
that is the agencies job, whether the groups are progressive or
conservative.
Trevor Potter
From: _law-election-bounces at department-lists.uci.edu_
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[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Joe La Rue
Sent: Thursday, August 08, 2013 10:15 AM
To: Smith, Brad
Cc: _law-election at department-lists.uci.edu_
(mailto:law-election at department-lists.uci.edu)
Subject: Re: [EL] BOLOs, TAGs, and Drums
Brad, Brad, Brad. Didn't you hear? The IRS only targeted progressive,
liberal groups. Or perhaps it is that no group was targeted; the IRS was just
doing its job. Regardless, there was no targeting of conservative groups.
The extra scrutiny applied to them, as well as the delays they experienced,
was all warranted. It doesn't matter what the IRS says. After all, if we're
going to revise history, and ignore the IRS's admissions against interest
(which is what some are doing), then we might as well do it on a large
scale. Go big or go home, right? So let's beat the drum together that the IRS
got it all wrong when it admitted it had improperly targeted conservative
groups.
My only question, I guess, is why is that a drum that anyone would want to
beat? Are some so politically driven that we cannot acknowledge that
something dreadfully wrong happened here, simply because it happened to the
other side? If the IRS can do it to conservative groups in the mid-2010s, then
they can do it to progressive groups if the White House (or even just the
IRS) becomes more conservative. And I continue to beat my drum and say: it
doesn't matter whether it was all conservative groups, or all progressive
ones, or a mixture of each that was targetted. What happened was wrong. And
I remain shocked that that is not something that we can all agree on.
Joe
Joe
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On Wed, Aug 7, 2013 at 9:31 PM, Smith, Brad <_BSmith at law.capital.edu_
(mailto:BSmith at law.capital.edu) > wrote:
Where does this idea come from that they were evenly distributed? That's
not what the IRS says.
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
_614.236.6317_ (tel:614.236.6317)
http://law.capital.edu/faculty/bios/bsmith.aspx
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of Mark Schmitt [_schmitt.mark at gmail.com_ (mailto:schmitt.mark at gmail.com) ]
Sent: Wednesday, August 07, 2013 10:54 PM
To: _law-election at department-lists.uci.edu_ (mailto:law
-election at department-lists.uci.edu)
Subject: Re: [EL] BOLOs, TAGs, and Drums
This seems like a very new drum indeed. You seem to be saying that the
very idea of a "BOLO" list, or what I've also heard called an "emerging
issues" list, is illegitimate. I don't have the knowledge of IRS procedures that
you do, but this is not an argument I've heard before.
It really doesn't seem complicated. Groups with the word "progressive" in
their names or descriptions were getting some extra scrutiny based on
long-established practice. That makes sense: The Progressive Policy Institute
was established in 1991. Center for American Progress and the c(4) American
Progress Action Fund in 2003. Progressive States Network, Progress Now and
a bunch of "Progress [state]" c(4)s in 2005-2007, continuing to recent
years. Those are the ones that jump to my mind, but there are others. The IRS
had a lot of time to absorb and consider those groups, and still their
applications took many months. "Tea Party," as we know, was not a term that
organizations were using before 2009-2010. And rather than the slow growth
curve of "progressive" c(4)'s, a lot of groups using Tea Party and related but
also new terms were created quite rapidly. Hence, it was an "emerging
issue," or something to look out for, on which a formal protocol had not yet
been established, but might need to be.
What am I missing here? Both "progressive" and "Tea Party" groups were
flagged for scrutiny, One term was old, the other was new. Both faced delays,
questions and obstacles. Maybe those delays were themselves "wrong," as
some have alleged, or maybe not, but they were evenly distributed. If one came
from one kind of list, and the other from another list, why do we care?
Mark Schmitt
Senior Fellow, _The Roosevelt Institute_
(http://www.rooseveltinstitute.org/)
_202/246-2350_ (tel:202/246-2350)
gchat or Skype: schmitt.mark
twitter: mschmitt9
On Wed, Aug 7, 2013 at 2:02 PM, <_BZall at aol.com_ (mailto:BZall at aol.com) >
wrote:
Sigh, not to continue Prof. McDonald's "drum" analogy further, but there
seems to be a continuing error of conflation in these discussions, both on
the Hill and in this thread. If Glenn Kessler ("The FactChecker" from Jeff
Bezos's newspaper) can figure this one out, so can those looking for the
difference between treatments:
"Meanwhile, Democrats have highlighted information that they say undercuts
the thrust of the Inspector general’s report. While that report focuses on
scrutiny of “tea party” and related groups — which had been placed on “
be on the lookout” (BOLO) lists — Democrats released _documents_
(http://democrats.waysandmeans.house.gov/sites/democrats.waysandmeans.house.gov/files/N
ovember%202010%20BOLO%20IRS0000001349-IRS0000001364.pdf) showing that the
term “progressive” had been part of a “TAG [touch-and-go] Historical”
list."
http://www.washingtonpost.com/blogs/fact-checker/post/explainer-sorting-through-charges-and-countercharges-in-the-irs-probe/2013/07/02/1cc2f520-e352
-11e2-aef3-339619eab080_blog.html
There is a difference between a BOLO list and a TAG list ("Touch and Go").
See, e.g., http://www.irs.gov/irm/part7/irm_07-020-006.html, explaining
Touch and Go as a standard processing term in many highly-problematic areas.
(Note: the Internal Revenue Manual is the internal description of standard
procedures and can be relied on in certain tax or legal proceedings.) Real
TAG analyses are generally reserved for abusive transactions (many of
which involve exempt organizations) and have a very specific chain of command
and authority, plus review. Potential terrorism issues, for example, are on
TAG reviews. You can imagine the reviews those generate. "Compliance"
project reviews are generally not worthy of the full TAG panoply. IRM
7.20.6.1.2.1.
To the extent we even know what they are/were, BOLOs, on the other hand,
are a new and unreported (and apparently badly supervised) version of TAG
lists that raised many of these issues. Like TAGs, BOLOs use key words in
the database to identify possible transactions, but the differences are in
the structure, supervision, and probably the choice of terms as being
recognized for a particular definition of what the problem is. Who generated the
terms? We don't know. Who reviewed the terms? We don't know. Who reviewed
the selections based on those terms? We don't know. What was the process used
once a selection was made? We don't know. Etc. What we do know is that
everyone passed the buck or said they didn't know.
In other words, TAG reviews are what we expected the IRS to do if there
had really been a problem; BOLOs are not. BOLOs are, for want of a better
description, rogue TAGs, and no one wanted to grab that leash to bring them
under control. THAT is the scandal; not that groups' applications were
scrutinized, but that the process was overwhelmingly one-sided and unrestrained.
There is no IRM entry for BOLO lists, nor will there be, despite Cong.
McDermott's entreaties.
http://www.realclearpolitics.com/video/2013/06/27/rep_mcdermott_irs_should_keep_bolo_lists.html. Having seen them in action, I
would be surprised if EO or any other part of IRS made the term "BOLO list" a
routine part of the IRM in the future.
As I understood the more informed (or less utterly-clueless) of the
discussions, the liberal groups were mostly on TAGs; the conservatives (and a
few unlucky progressive exceptions) were on BOLOs. Note that in the
attachments to the House Dems' complaint, pages 1-9 refer to TAGs; only after P. 10
is there a reference to BOLOs, but all the listings cited say they are for
BOLOs.
http://democrats.waysandmeans.house.gov/sites/democrats.waysandmeans.house.gov/files/August%202010%20IRS0000002503.pdf The same is true through
the next few "BOLO" listings; it's really TAGs and BOLOs without
discrimination.
Both inclusions were undoubtedly mistakes, but one was quickly resolved
through a quick look at the TAG rules; the other was not and it grew and
grew and grew.
Doesn't mean Prof. McDonald is wrong, and he'll undoubtedly explain why
his drum still thrums alone, but it does add another beat to the mix.
Barnaby Zall
Of Counsel
Weinberg, Jacobs & Tolani, LLP
10411 Motor City Drive, Suite 500
Bethesda, MD 20817
_301-231-6943_ (tel:301-231-6943) (direct dial)
_bzall at aol.com_ (mailto:bzall at aol.com)
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In a message dated 8/7/2013 1:20:46 P.M. Eastern Daylight Time,
_mmcdon at gmu.edu_ (mailto:mmcdon at gmu.edu) writes:
The IRS issued BOLOs that used the keyword search approach to identify
liberal groups, just as they did conservative groups. Unless, you mean to say
that liberal and conservative groups were flagged as a general course of
business, in which case I am inclined to agree with you. I say "inclined"
since there is an outstanding question as to why more conservative groups
were flagged than liberal (something I am sure someone will say to beat their
drum). A likely non-nefarious explanation is that a greater number of
conservative organizations filed for status, which is my belief until
contradicting evidence comes to light.
The evidence that continues to come to light is entirely consistent with
my initial postings on this matter. I'm in the fortunate position of only
ever needing one drum to beat since I've never had a drum taken away.
============
Dr. Michael P. McDonald
Associate Professor
George Mason University
4400 University Drive - 3F4
Fairfax, VA 22030-4444
phone: _703-993-4191_ (tel:703-993-4191) (office)
e-mail: _mmcdon at gmu.edu_ (mailto:mmcdon at gmu.edu)
web: _http://elections.gmu.edu_ (http://elections.gmu.edu/)
twitter: @ElectProject
-----Original Message-----
From: _law-election-bounces at department-lists.uci.edu_
(mailto:law-election-bounces at department-lists.uci.edu)
[mailto:_law-election-bounces at department-lists.uci.edu_ (mailto:law-election-bounces at department-lists.uci.edu) ] On
Behalf Of Smith, Brad
Sent: Wednesday, August 07, 2013 12:45 PM
To: _law-election at department-lists.uci.edu_
(mailto:law-election at department-lists.uci.edu)
Subject: Re: [EL] Lerner in her own words - "everyone" "screaming"
I'm surprised that Michael keeps thumping this drum since the Inspector
General, and the IRS itself, have said quite clearly that conservative
groups were targeted. The fact that some liberal groups were also snared, either
in the criteria used to scrutinize conservative groups, or in the general
course of business, really doesn't change that, and numerous analyses the
numbers have verified the impact.
But having said that, it doesn't matter. Even if Michael were correct,
that would change only the nature, and not the fact, of the scandal. And
that, again, represents the problem.
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
_614.236.6317_ (tel:614.236.6317)
http://law.capital.edu/faculty/bios/bsmith.aspx
________________________________________
From: _law-election-bounces at department-lists.uci.edu_
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[_law-election-bounces at department-lists.uci.edu_ (mailto:law-election-bounces at department-lists.uci.edu) ] on
behalf of Michael P McDonald [_mmcdon at gmu.edu_ (mailto:mmcdon at gmu.edu) ]
Sent: Wednesday, August 07, 2013 11:43 AM
To: _law-election at department-lists.uci.edu_
(mailto:law-election at department-lists.uci.edu)
Subject: Re: [EL] Lerner in her own words - "everyone" "screaming"
I remained silent with the "I told you so" when a litany of media reports
finally came out showing how liberal organizations were flagged and
treated the same as conservative organizations. But this is the story that will
not die so here we go...
Where this logic fails is that the IRS included liberal groups in their
treatment such as those advocating for the Affordable Care Act. When did the
president or Democratic members of congress ever indicate that they wanted
the IRS to go after groups advocating for Obama's signature legislative
accomplishment? Or was that Republican members of Congress sounding those
alarms? Perhaps when Lerner says "everyone" she means *everyone* and not just
the president and his congressional allies. And if everyone was clamoring
for action against their political opponents, how could any action taken by
the IRS not be alleged as singling out a political opponent of someone?
============
Dr. Michael P. McDonald
Associate Professor
George Mason University
4400 University Drive - 3F4
Fairfax, VA 22030-4444
phone: _703-993-4191_ (tel:703-993-4191) (office)
e-mail: _mmcdon at gmu.edu_ (mailto:mmcdon at gmu.edu)
web: _http://elections.gmu.edu_ (http://elections.gmu.edu/)
twitter: @ElectProject
From: _law-election-bounces at department-lists.uci.edu_
(mailto:law-election-bounces at department-lists.uci.edu)
[mailto:_law-election-bounces at department-lists.uci.edu_ (mailto:law-election-bounces at department-lists.uci.edu) ] On
Behalf Of Smith, Brad
Sent: Wednesday, August 07, 2013 11:17 AM
To: Trevor Potter; Jason Torchinsky;
_law-election at department-lists.uci.edu_ (mailto:law-election at department-lists.uci.edu)
Subject: Re: [EL] Lerner in her own words - "everyone" "screaming"
And that is, to me, what the scandal has always been about. It's not that
there was some White House order (although that wouldn't overly shock me).
It's that the White House and the President publicly and repeatedly
sounded the "alarm," and the need to get after these groups. It's that members of
Congress repeatedly wrote to the IRS to demand that it take action or
inquire why it hadn't (and we know what such an inquiry means). It is that
Democrats held show hearings all over Capitol Hill, wherever any committee
could with any remote legitimacy claim some jurisdiction, to excoriate these
groups. It is that Democrats publicly and private pressured the SEC and the
FCC, as well as the IRS, to take action because the FEC would not and
Congress was unable to pass DISCLOSE.
Of course the IRS responds to such posturing, inquiries, and vilification.
That is the problem. And it continues, as Sen. Whitehouse held a hearing
this spring openly accusing groups of violating the law, with no evidence;
as Senator Levin promised to "investigate" these conservative organizations;
as Senator Durbin sent out mass letters yesterday demanding to know if
various persons and groups had in any way funded ALEC.
There was what reformers would call "an astroturf" campaign, headed up by
prominent Democratic officeholders and aides, to drum an aura of crisis
about the political participation of their political opponents, and then to
demand that the huge federal bureaucracy step in to "do something" about it,
in light of the fact that Congress could not muster the votes.
That is the problem, and it is exactly what we've been warning about for
years would be one of the many problems with campaign finance regulation.
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
_614.236.6317_ (tel:614.236.6317)
http://law.capital.edu/faculty/bios/bsmith.aspx
________________________________________
From: _law-election-bounces at department-lists.uci.edu_
(mailto:law-election-bounces at department-lists.uci.edu)
[_law-election-bounces at department-lists.uci.edu_ (mailto:law-election-bounces at department-lists.uci.edu) ] on
behalf of Trevor Potter [_tpotter at capdale.com_ (mailto:tpotter at capdale.com) ]
Sent: Wednesday, August 07, 2013 11:04 AM
To: Jason Torchinsky; _law-election at department-lists.uci.edu_
(mailto:law-election at department-lists.uci.edu)
Subject: Re: [EL] Lerner in her own words - "everyone" "screaming"
Jason
I know you are relying on a Breitbart piece, and it has an obvious point
of view. However, even that piece does not say that there was any pressure
from the "White House" on the IRS, and Breitbart is fair enough to note that
there was a great deal of press coverage and editorials in 2010 about new
501 c4s which appeared to be doing nothing but huge amounts election
activity in 2010. As the article states:
"TIGTA's report contains a few key redactions which conceal precisely how
the scrutiny of Tea Party groups began. Reading between the lines it seems
media attention played a role. Plans by a Tea Party group to create a new
501(c)(4) were featured in stories at the NY Times and NPR just a couple
weeks after Obama's statements about Citizens United. These stories apparently
caught the attention of the IRS which regularly monitors news stories to
be aware of developing issues."
Thus, the "everyone" wanting the IRS to "do something" in context appears
to refer to the quite public and common outrage reported on in the press
that essentially political entities were using 501 c 4 status to avoid
disclosure of their donors which would be required under election law.
Trevor Potter
From: _law-election-bounces at department-lists.uci.edu_
(mailto:law-election-bounces at department-lists.uci.edu)
[mailto:_law-election-bounces at department-lists.uci.edu_ (mailto:law-election-bounces at department-lists.uci.edu) ] On
Behalf Of Jason Torchinsky
Sent: Wednesday, August 07, 2013 10:47 AM
To: _law-election at department-lists.uci.edu_
(mailto:law-election at department-lists.uci.edu)
Subject: [EL] Lerner in her own words - "everyone" "screaming"
http://www.breitbart.com/InstaBlog/2013/08/06/Lois-Lerner-Discusses-Politica
l-Pressure-on-the-IRS-in-2010
In case anyone missed this, here's Lois Lerner in her own words from 2010
explaining that "everyone" wanted the IRS to "do something."
This video according to the report was taken in the fall of 2010.
Implications of this? I thought the IRS and the White House have
maintained there was no pressure on the IRS.
- Jason Torchinsky
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unless specifically indicated otherwise, any tax advice contained in this
communication (including any attachments) was not intended or written to be
used, and cannot be used, for the purpose of (i) avoiding tax-related
penalties under the Internal Revenue Code, or (ii) promoting, marketing, or
recommending to another party any tax-related matter addressed herein. This
message is for the use of the intended recipient only. It is from a law firm and
may contain information that is privileged and confidential. If you are
not the intended recipient any disclosure, copying, future distribution, or
use of this communication is prohibited. If you have received this
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