Amazon Affiliate Tax Solution

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The following details the current “Amazon Affiliate Tax Issue” and what you can do as an affiliate to keep your business in business despite attempts from lawmakers to shut you down “inadvertently”.

Note: It is HIGHLY recommended that you get an attorney to set this up for you. While this set-up worked for me, it may not be the best solution for you. However, with the ideas presented here, it may give your attorney what they need in order to create the correct solution for you.

[flv]http://www.seorevolution.com/blog/media/2009/seo-amazon.mov[/flv]

Update: A few members and one of my staff members informed me of an attorney bashing this solution. I was tempted to remove this video from public view and only have it available to my members, but as one member said, “Jerry, there is a reason for all of those lawyer jokes.” Good point. The video will remain online.

The following is my response:

1. First of all, his “solution” is that you physically move to another state. In this real estate market, do you think you can sell your house? And while you are waiting your income is either slashed in half or gone altogether. Your lifestyle will greatly suffer. And what happens when the state you move to passes this law, are you going to move again? Vegas is a great place to visit, but you couldn’t pay me to live there. That is not a solution.

2. Collecting these taxes is unconstitutional until the federal law is overturned. States are claiming that affiliates represent a “physical presence” in the state, and thereby, the merchant has to collect sales taxes. It is absurd to believe that an affiliate represents a “physical presence”. The courts will probably argue about this for years.

3. What would you rather have, paying a slightly higher tax rate on 100% of your income or the same tax rate you pay right now on 50% or 0% of your income? Yeah, I thought so. The bottom line here is getting you BACK in business quickly, not twiddling your thumbs and paying $20-30k to move to a state you don’t want to live in away from family and friends.

4. And as for traveling for meetings of shareholders and such, I have had a foreign company in another state for years and I’ve never had to personally show up to a shareholders meeting. They are all done through the mail and over the phone. Besides, if I did, I’m in Vegas twice a year. What affiliate DOESN’T want to go to Vegas at least once a year?

5. He then makes a pitch that you need a good internet attorney. Oh, he just happens to be one. Big surprise.

The solution I present isn’t my opinion, it is the solution my attorney and tax accountant came up with. I should also add my merchants, who terminated my accounts, were very helpful in providing advice to ensure their needs were met. I was in full communication with them through this process (you should too). As I state in the video, discuss this solution with your attorney. They know your business the best. But chances are, if they set you up correctly the first time, you already have a corporation setup in Nevada or Delaware for tax purposes. All you are doing is setting up a physical presence there remotely, and you are setting up a corporation in your home state to protect you from future IRS audits which are coming soon.

My solution has passed all the audits and I am confident that this is not unethical that I am posting this publicly. After all, all of my accounts are fully restored, which is exactly what you want.

Comments

  1. Rick says

    Jerry,

    As always, you come up with solutions rather than getting stuck at the problem. Great Job! Like the video.

    As far as I know, the sales use tax has been in place for as long as I can remember, but I have never seen it enforced. This is an interesting twist that some states have taken in trying to come in the back door on this and instead of chasing the tax revenue down, they simply stop at the backdoor and ask for it from the merchant. I, like Gunter, am wondering why I am not seeing this in other blogs. I suspected that it is because it has not hit too close to home for them yet and they are just not seeing how this is going to affect them, though it likely will sometime in the near future if this gets hold in other states.

  2. says

    @Gunter – I have no idea why others are not posting solutions. Probably because they didn’t get kicked in the nuts like I did and have nearly half their income go away. I was down for about ten days or so. Not too bad.

    @Rick – When it comes right down to it you can either bitch and moan about how life is unfair or get to work and solve the problem. I’d rather to the latter. The governor here has decided to push the vote back another two weeks. Glad my solution is in place or I’d be going nuts right now.

  3. Stephen says

    So Jerry would this affect you if YOU were the one running your own affiliate program?

    And if you did have your own affiliate program with affiliates selling “your” products does it matter if they’re selling physical as opposed to digital goods (e-books) & or services (membership site)? Basically would you have to collect taxes as the business owner for your affiliates in a state where they’re actively trying to collect those taxes even if all you and your affiliates are selling are non-physical goods?

    By the way great soulution, and thank you very much for sharing it with the rest of us! :-)

  4. gregory says

    Great work on coming up with a solution, and Thanks for keeping us informed and sharing. There needs to be a bigger awareness and concern for this issue. I am going to get myself prepared and not take the hit when it happens here.
    Thanks!
    gregory

  5. says

    Stephen,

    I actually am also a merchant for a few products and what this law would do would require me to collect sales tax for all outside states that pass this law. It really doesn’t affect me as I collect sales tax for all sales made in North Carolina anyway, and the product I sell is mainly for people living in the south-east, so I don’t have any affiliates in New York. However, if I did, I would have to build a complex table for my shopping cart to figure the sales tax in each county in New York. I think I’d probably do the same thing as Amazon did and terminate the affiliates in that state because I wouldn’t want to go through that. I mean, who WOULD want to go through that!

  6. Dan says

    Congrats on finding a solution, Jerry!

    What was your procedure for getting reinstated so quickly with the merchants who dropped you? Did you just send them an email with your new DavinciVirtual contact info in an unaffected state? (or maybe sent them a copy of this video? ;)

  7. Kevin Foster says

    Thanks for taking the time to make this video and share the solution you found, Jerry – it’s much appreciated!

  8. says

    Jerry,

    Thanks for taking the time to put this video together!

    I really appreciate you taking the time to identify the problem, the impact from it, and the solution to solve it.
    Brilliant!

    – Michelle Murray

  9. Andrew Edwards says

    Thanks Jerry,

    As well as showing how to solve the problem you produce a very powerful lesson on how to deal with the challenges that life presents you.

    Powerful video.

    Thanks

    Andrew (Australia)

  10. says

    Dan,

    All I did was update my address in my contact information area, called my rep and said that I had moved my business. They called the number, the call was routed to me for verification, and I was reinstated.

    It was easy.

    A few saw the video, in fact, they were instrumental in helping come up with the ideas with how they do their audits.

  11. Murray says

    With more and more companies going on line, the states don’t like losing sales tax dollars. This was bound to happen, and probably will spread from state to state eventually. It could be the beginning of the downfall of affiliate marketing. I hope not as I am just beginning this year, to make the kind of money I have been working so hard the past couple of years to build.

  12. Bruno says

    While your solution is a good strategy, we must go further and protect the Golden Goose… Free Enterprise.

    Capitalism is under attack. Hollywood, the media, politicians, academia is constantly labeling capitalists as bad, greed and selfish etc.

    We sell products and services and our income comes from sales. Politicians sell laws and regulations and their income comes from more and more taxes!

    We are getting at point where too much regulation and taxation is putting people out of business.

    As a result… I am getting involved politically at my local level, by helping to elect and re-elect politicians that are business friendly and anti excessive regulation and taxation.

    I am using my Internet marketing skills to help with this process.

    WE must protect our livelihoods or someone else will eat your lunch!

    I urge all of you to start getting involved, and protect our fabulous Free Enterprise system that has provided Americans one of the worlds best living standards.

  13. says

    I agree. Free enterprise is what is being attacked here. And if it gets so bad that elected officials will impose a tax for everything, I hear Costa Rica is very pleasant in the winter.

    I’m sure they would like my tax dollars and “vacationing” there a few months a year in the cold winter months doesn’t sound too bad. Lawmakers need to understand that taxing what we make and what we spend is a form of double taxation. I’m one of the few people that likes to pay taxes. I know it costs money for roads, parks, trails, programs, etc. But I guarantee you, if government was run more like a business, they wouldn’t need as much money as they do. Let me run my business, employ people in your state, pay my fair share of taxes, and use my income to support local merchants, who also in turn, pay taxes and employ local people.

    It’s the great circle of commerce. Don’t mess with it and we’ll all get along just fine.

  14. says

    There’s another huge issue regarding sales tax in any form that rarely gets discussed…

    As a merchant, if you’re required to collect sales tax for a state and most of your transactions are done online via credit card then not only are you doing the state’s work for them – by collecting the tax and having to file the tax paperwork… but you are also paying the 1-3% in credit card fees on the amount of tax collected.

    There is no reason we should have to pay these “penalties.” These fees should be deductible from the amount of tax collected and there should also be at least a $50 credit for doing the bookkeeping and paperwork for them.

    Now that NC and other states are trying to tax sales of digital products and information like e-books and membership site fees, this is going to become a much bigger issue.

    I’ll be at Stompernet next month if you want to meet and compare notes…

    -Teddy Garcia
    http://www.GearedLocal.com

  15. says

    Teddy,

    That is a great point and one that I hadn’t considered. Looking forward to meeting you next month at Stompernet and we can compare notes. I have a feeling this will be argued for some time. Meanwhile, it is business as usual.

  16. Dave says

    Jerry – I probably shouldn’t waste my time contributing to this as you deleted my posts? Before you settled on your solution I wrote: “a virtual setup would likely be at risk” – perhaps that’s what you don’t want to hear … but here’s something for you and your attorney to ponder …

    Do you think the statutes will be written without anticipating the ways to game the system? You can bet that anyone who can be defined as a resident of the state will be subjected to these laws — meaning any sale you generate, regardless of where your Co is located will be legally subjected to the tax.

    What happens when a competitor or anyone tells NC or Amazon that you are a resident of NC? Imagine the reaction of Amazon when NC goes after them for back unpaid taxes on your behalf. Then what? States will likely have a fraud case against anyone doing this – and will be looking to apply the hammer to set an example.

    I think you’ll find that the only way to beat this is to claim NV as your primary residence. Get a cheap condo > forward that mail to davincivirtual.com in NV.

    David

    PS With the participation merchants, states that employ this scam should be buried in class action lawsuits.

  17. says

    Nicely done Jerry. What impresses me most but doesn’t’ shock me is how quickly you researched the problem and then put a solution in place to fix this headache.

    You are correct, the states supporting this tax method don’t get it. Typical short term thinking once again from government.

    Regardless thanks for sharing this info with affiliates everywhere. It was very generous of you to share it with your none paying members. Doing so will no doubt make you a target but that’s nothing new for you ;)

    Great info, and great ideas as usual ;)

    Don Schnure
    http://www.1AutomationWiz.com

  18. says

    In regards to the post by “Dave”

    Dave you don’t have to have NV (for example) as your primary residence as your companies physical nexus IS in Nevada.

    It’s perfectly legal. Now having said that, Jerry’s solution won’t work if you are foolish enough to be doing business without doing so under a corporation of some kind. LLC’s and S corps are best. Don’t do business as a sole proprietorship – ever!

    LLC’s and S corps give you tax and other business advantages that a sole proprietorship won’t. For example, Jerry’s solution won’t work if you are operational as a sole proprietorship. It will as an S corp or LLC.

    Lastly, let’s be very clear here. As I read it Jerry is not suggesting that you create “a virtual setup”.

    By incorporating your business in a state like Navada, AND having an office with live people answering the phones, taking your mail, etc, you are establishing a physical presence for THE COMPANY, not you personally.

    You can live anywhere you want and the merchant can’t say squat because they make your checks out to your COMPANY and NOT to you directly.

    One take away that Jerry didn’t really press on is that you MUST do business as a corporation.

    If you are serious about being an affiliate, or running a company, don’t do it without the protection and advantages you get by using a corporation.

  19. Dave says

    Hey Don … you make some good points – but I’m anticipating the worst when these scam statutes are penned.

    Foremost, my hat goes off to Jerry for stepping up to the plate and getting back in action NOW.

    In essence, I believe your point is that establishing a physical presence for THE COMPANY, not you personally solves the problem. If so – it’s game over for the states doing this as all serious affiliates will set up this way. BTW I’ve had a NV LLC since the 90’s and live in Vegas. I realize the legal separation, benefits therefrom and the point you are making.

    But “What If” state statutes anticipate this setup and target ANY resident of the state generating taxable revenue — whereby regardless of ANY proxies, business entity or business location — a resident’s sales are subjected to the tax? Aren’t they already doing this in similar fashion … If you are a resident of NC … wouldn’t you be liable for their state income taxes, regardless of where or how your company is chartered? If not – everyone would have their operations in a state with no state income tax. I can’t imagine not beating NC out of 8% if it was doable — because that much is a rip-off.

    Just for the sake of getting creative – figure how much $/mo your state income tax is. Then compare that to $250/mo for a cheap condo that could be used to claim NV as a primary residence. NC would buy/rent your condo and still pay you more monthly when their 8% disappears. Any state doing this is really hard – balling affiliates and deserves the shaft. That move is a checkmate.

  20. says

    @ Dave – If your post was deleted, it wasn’t intentional. We get a lot of spam, even with the Spam Karma plugin.

    The one issue that we have to remember is this issue hasn’t passed in North Carolina and the vote has been postponed until the end of the month, and it will probably be postponed again as they debate it.

    Merchants are taking the aggressive position by terminating accounts now, so they aren’t liable for any taxes. My stance is this is unconstitutional, and the states will be hard pressed to prove an affiliate is an actual physical presence for the merchant.

    Don is right in that this is not representing you personally, but your company.

    The state can target where I live all they want, but it is where I conduct business and where I am incorporated that matters. Each solution will be different as each corporation setup is different, but if you use the ideas I present, your attorney can come up with the details needed to make it air tight for you. Since you are already in Nevada, you’ll have nothing to worry about – hopefully.

  21. says

    Hi Dave!

    I think ALOT of people are missing the point on what this is REALLY all about. I see you mentioned income tax in your comments.

    This particular issue isn’t about a state’s income tax – it’s about a state’s “sales tax” and whether an affiliate is actually a physical presence for an out of state merchant and therefore is obligated to collect that tax on behalf of the state.

    Don mentioned in his comment above:

    “You can live anywhere you want and the merchant can’t say squat because they make your checks out to your COMPANY and NOT to you directly.

    One take away that Jerry didn’t really press on is that you MUST do business as a corporation.”

    OK … the company is now the affiliate and all checks are made out to the company. But what YOU take out of the company (such as a salary, whatever)… will be the basis on the “income tax” that you will owe on an individual basis in the state you are resident of.

    Two separate entities – company AND individual.

    I live in Rhode Island and as an affiliate I have been in same boat as Jerry and others have been. When I move my biz out of state, I’ll still remain here in RI as a resident. And I’ll still be obligated for any “personal” income I receive from my company and/or other sources, to pay RI income tax on that income.

    RI is NOT a business-friendly (big OR small) state and I was working on moving the biz anyway. But this “affiliate nexus” issue just speeds things up for me. heh heh

    BTW … I believe it’s been mentioned before, but there is a difference between “tax evasion” and “tax avoidance”. Tax evasion IS illegal … Tax avoidance usually isn’t.

    This whole thing is a PIA but we still have to deal with the clueless lawmakers. And we STILL have to find ways to keep on going.

    I hope I made SOME sense here. IF not … back to the drawing board! LOL

    Have a GREAT Week All!

    Rick Wilson

  22. Georjina says

    Thank you for clearing up the confusion. Since I currently live in WA, Amazon didn’t send me a notice but I’m concerned because they aren’t the only merchant I’m affiliated with.

    Been considering moving back to Vegas, guess now is as good a time as any. I do have an S-Corp registered in Delaware.

    Thanks everyone for the additional comments, because there is so much “mis-information” floating around, putting all the pieces together can be confusing.

  23. Dave says

    Hey Rick – Yes, I know this isn’t about state income tax. I’m just pointing out the personal income tax savings for claiming NV as a primary residence — and I’m writing under the assumption that the “affiliate tax” is understood by those reading this thread.

    Jerry — Right on. This is blatantly unconstitutional and should move up the ladder to higher courts. At least that should take the issue away from local politics and their bias appointed judges.

    I just checked out the NY case — damn I just knew they would tie this to being a resident. Since the Supreme Court ruled that retailers don’t have to collect sales tax unless they have a physical presence in the state — the states are connecting the Commission Agreement between Affiliates and Merchants to the Affiliate’s home! Simply, if you have an Agreement with Amazon, you are their physical presence in the state because you live there. Apparently, the separation between people and their company is ignored.

    Jerry, you say:

    “The state can target where I live all they want, but it is where I conduct business and where I am incorporated that matters.”

    That’s the way it should be but look at the NY law for a preview of what’s coming in NC and other states if it passes. I’m not concerned with NV but I’m considering moving back to PA where I grew up. Another broke state with dumb asses destroying it and bleeding the residents. If this flies they’ll fall right in line – monkey see – monkey do.

    I spent some time in Costa Rica. It’s paradise compared to the US. The Americans who live there wouldn’t come back here for love or money.

  24. says

    Hi Jerry,
    How are you getting around the corporate tax ID thing. All Rhode Island corporations Fed Tax ID’s start with “05”. Every state has their own. Isn’t this going to require we incorporate (again) in a freindly state?
    Keith J

  25. says

    @ Rick – Thanks for your comment. Yeah, a lot of people are getting confused by this issue. They think it is an extra tax we are dealing with, when in reality we are having our businesses shut down by merchants because they don’t want to comply with these new pending tax laws.

    This is just our way to keep our businesses moving forward while lawmakers can figure this out. Did you know that TV stations are paid a commission on the sales of infomercials? By the logic the lawmakers are using, TV stations would then be viewed as “physical locations” for the infomercial owners. Think about that for a moment.

    @ Georjina – Glad things are getting more clear for you. Discuss this issue with your attorney, but I doubt you will have to move, just set up a physical presence there. Remember, this issue isn’t law in Washington, and it violates the ruling by the Supreme Court. This is just protecting your business and your right to operate it.

    @ Keith – Yes, you do need to incorporate in the “friendly state” and set up your physical presence there. It isn’t much and worth the peace of mind.

  26. Resale Rights Products says

    Jerry,

    Will or have merchants who sell digital items get hit with this Amazon Tax stuff? What merchants who sell services?

    And does anyone know anything about Ebay. What is their stance on this?

    Thanks
    Honor

  27. Dan says

    Jerry, thanks for sharing your solution with other online marketers. That’s great the merchants you work with were helpful as well. This is reassuring that they’re as much against this as affiliates are. They’re just trying to protect themselves also.

    The point people need to remember, is that a corporation is separate from it’s owner(s). So it really doesn’t matter where you personally LIVE as an affiliate, it’s where you conduct your business operations. It just so happens that most affiliates conduct their operations from their own home.

    Conceivably, someone could live in one state and have their affiliate/business operations in another state, especially if they live where two states border each other.

    My concern is that even with a foreign corporation setup in another state and having an external/virtual office there – If these tax shenanigans do become law, then the state in question will view business operations, which are still happening there, as being a business presence and would therefore be taxable.

  28. Jan Gregory says

    Jerry,

    You are a smart guy who listens to your own tax attorney and accountant. And every problem has a solution.

    The issue is the issue, and it is nothing else.

    “Where you be, is where you be, man!”, the rapper sang.

    Physical presence is the only hat hook the state govts have available to hang on any individual or corporation which are separate legal entities.

    State legislatures cannot change legal precedents.

    You are an individual, subject to various taxation. You are only a shareholder in any corporation, which in turn has it’s own tax burdens and regulations.

    Corporations are separate legal entities enshrined in statute law and in 1000’s of judicial rulings precedents across many jurisdictions.

    Your plan allows one to remain a red-blooded American taxpayer in full compliance with all laws.

    Income tax is not Use, Sales, or Excise tax. If a shareholder(as an entity) receives dividends, or sub-s yearend payouts, then it is only subject to Income tax by appropriate state and federal authorities.

    Some point out that State govt might attack the requirements for physical presence and blah-blah-blah. Well, hell… if any politician thinks he is going to change the status and precendents for corporate law, then he walks on water already.

    Cuz if it were possible to change that, it would be govt. suicide since every major business is a corporation and would flee that state at the nearest exit.

    Just think, you and I enjoy the same legal privileges as IBM and all the rest of the big guys. Thank God for that.

  29. Mike Jones says

    Nice article on these agreements. I am working on a project to find out about these unfair credit agreements and this has helped

  30. says

    Any solutions for the little guys who aren’t making enough yet to pay $200 a month plus all the other expenses of getting an LLC in another state?

  31. says

    Great video but totally not helpful in my situation. I started affiliate marketing last Fall because I can’t work outside of the home (due to family obligations). I build niche websites and my income is growing every month, but I’m still new at this & am not making loads of money yet. Now that Virginia has passed this stupid law, I’m thinking all my work was for nothing. Just wondering if there were any other options for those who don’t have money. Guess there isn’t.

    • says

      Cathy,

      Actually, have you thought about taking your skills in building niche websites to offering that service to local businesses? It would be a quick way for you to get the income you needed to setup your business out of state so you could function as an affiliate. Another option would be to call your merchants. Some will still allow you to operate as an affiliate even with the current “affiliate tax” passed. I would suggest that you do what I did, and that is write your elected officials and tell them that because of this law they passed, you will be voting for their opponent in the next election. :-)

  32. says

    I actually tried doing websites for others when I was trying to figure out how to work online and for many reasons it just was not a good fit.

    I do have a long time craft biz that I do very well with in the Fall months. If I can hold out til then, I’ll use some of that money to set up out of state.

    I’m in Virginia so I have written all my state senators and delegates about opposing the bill. Unfortunately it passed the senate, still waiting on the house.

    Even tho this billed has not passed yet, I have been dropped by Drs Foster & Smith & warned that I would be dropped by Overstock.com (that I use a lot). Overstock & Amazon is what I use the most. Is it worth a shot to contact them or are they hard core about their rules.

    • says

      Hey Cathy,

      Amazon is very strict, but Overstock may give you some options. The biggest thing you should do is contact your merchants and ask them for solutions. Another option you have is to partner with someone in a state that isn’t affected and have the checks sent to them. The bottom line is, this law is unconstitutional.

  33. says

    Hey Jerry, don’t you have your LLC set in Nevada? I heard they are trying to pass this law there too now but I don’t know the details. Have you heard anything about that? What will you do if they do pass it there?

  34. Matthew says

    Thank you for posting this, Jerry!

    I read the lawyer’s retort and it *does* concern me that most of the laws seem to consider your place of residency a factor in whether or not you’re part of the merchant’s nexus. I’m curious… now that you’ve been doing this for nearly 9 months, is everything still working for you with your new arrangement? Any push back from the gov’t or the merchants?

    My very own representative in the California state assembly introduced this type of bill twice and it’s passed both houses but has been vetoed by our Republican governor. I happen to be a lifelong Democrat and I’ve never voted for a Republican, but when it comes to protecting my livelihood I think I might switch teams in November. Hopefully all the backlash in Colorado will make them think twice about what they’re doing. It’s almost criminal.

    • says

      Hey Matthew,

      Talk to your attorney about it. He/she will give you advice on how to take care of the “residency” issue. The lawyer’s retort is nothing more than a scare tactic to get you to do business with them. Your attorney can figure this one out in no time.

      Always remember that every problem has a solution.

  35. says

    Jerry, this is a great strategy – although it feels it little bit overwhelming to implement as a newbie. I recently moved to California and I’m setting up my first site which is being monetized via Amazon affiliate links. So far I’m safe and Amazon hasn’t canceled my account but I wonder if it’s just a matter of time. I plan to ignore for now but I’m really glad to have at least one possible solution to this problem. I also really like your attitude that every problem has a solution and it’s something I’ll keep in mind. Thanks!

  36. TV says

    Great work on coming up with a solution, and Thanks for keeping us informed and sharing. There needs to be a bigger awareness and concern for this issue. I am going to get myself prepared and not take the hit when it happens here.
    Thanks!

  37. Suzanne Jones says

    I live in Colorado and lost enough money from my Amazon commissions to do some looking around. Jerry’s plan was my Plan B but then someone in a private forum I belong to pointed me to skimlinks.com — a British company that is an affiliate of all the Amazons and many other companies. I am now an affiliate of skimlinks and make money from Amazon, a little less than before but not really much different. However, I do miss the detailed reports on what sold.

  38. Alex says

    Hi Jerry, I am a resident of Illinois who just received a cancellation from Amazon Affiliate because of a new tax law passed here. I’m sure there will be a new flood of interest in this post. Could you update us on how things are going for you? Does this solution still work? Any hiccups or updates people show know about? And what states do you recommend incorporating in? I was looking at Nevada because it’s the cheapest and easiest place to incorporate in, but you mentioned the IRS will “red flag” your company if created there. Why is that bad if we aren’t doing anything illegal.

  39. says

    Alex,

    Contact your attorney. While I give you ideas on how to keep your business running, you need to allow your attorney to set it up properly for you based on your circumstances.

  40. says

    My name is Jim and I am a retired sales/use tax accountant. For an additional understanding of the Art 1 Sec 8 enacted in1789, and governing since, Supreme Court decisions and recommen ded solutions to the problem, contact me at th above email address or call 901 496 7775.

    thanks,

    Jim Smothers, CSM(ret)

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