Tag Archives: legal

Tax Obligations for New Businesses

If you’re new to business, then wrapping your arms around your tax obligations can seem like an uphill task. The first question you need to ask yourself is which tax laws impact your business from the get-go? It may be safe to assume that your tax obligations kick in once you start making a profit. Not necessarily. Each business is different.

If you hire employees, you’ll have payroll tax obligations. If you operate a retail business, there’s sales tax to deal with. Then there are quarterly estimated tax payments (the self-employed equivalent of withholding).

To help you navigate the business tax landscape, here’s a quick overview of key tax obligations that may impact you.

Related: Behaviors of Successful People

Understand how your Business Structure Impacts your Tax Obligations

How you legally structure your business will affect your tax situation. For example, if your business is an LLC, the LLC gets taxed separate from the owners. While sole proprietors report their personal and business income taxes on the same form (Form 1040).

At the state level, you will encounter several tax obligations – sales tax, property tax, income tax, unemployment insurance tax, and more. The SBA offers more information on how your business structure determines your tax obligations (plus links to the necessary forms and portals for registering your business with the right tax authority):

Get a Federal Tax ID

An Employer Identification Number (EIN) is the business equivalent of your social security number. It’s is required by businesses who have employees, operate as a corporation or partnership, and other obligations. For the most part sole proprietors don’t need and EIN and can operate using their social security number. Does your business need an EIN and how do you get it? Learn more.

Related: Make The Entrepreneurial Difference

Pay Estimated Taxes

This one is easily overlooked, especially if you are new to business and previously had all your income tax payments taken care of through withholding. Each quarter, self-employed business owners must estimate their federal and state income tax payment and send a check to the IRS and their state treasury. This “pay-as-you-go” model applies to sole proprietors, partners, and S Corporations who expect to pay $1,000 in income tax in one year. The threshold drops to $500 for Corporations.

To help you calculate your estimated tax, check out the IRS Estimated Tax guide. Consult your state’s treasury office (you’ll find website links for each U.S. state here) to get the appropriate tax voucher or pay online.

It’s very important that you set aside sufficient to meet your estimated tax payments or you risk a cash flow problem. And don’t forget to keep good records of your income and expenses. The latter can be used to offset how much estimated tax you pay.

Sales Taxes – Does It Apply to You?

Sales tax applies to certain retail products (rarely services) and if your business has a physical presence in a state, such as a store, office or warehouse, you must apply for a sales tax permit and collect applicable state and local sales tax from your customers. That tax is then passed on to your state revenue office on a monthly or quarterly basis. Determining whether your business qualifies as having physical presence in a particular state (say, if you own a warehouse in Virginia but sell your services in Pennsylvania) and the implications on sales tax collection can be confusing. Certain states are exempt from sales tax including Alaska, Delaware, Hawaii, Montana, New Hampshire and Oregon.

Related: Marketing Tools Entrepreneurs Should Keep Handy

Employment Tax – Withholding and Matching

If you start your business and immediately have employees on payroll, you’ll need to withhold Social Security (FICA), Medicare and federal and state income taxes from their salaries. You must also match your employees FICA and Medicare taxes and pay this matching along with your employee’s tax.

The IRS Employment Taxes guide has all the information you need to understand how you deposit and report employment taxes, key due dates, and more. Take a look at this guide to hiring your first employee too.

Working with Freelancers and Independent Contractors? – Know your Tax Obligations

Bringing on a self-employed contractor brings with it additional tax ramifications, especially if your business accidentally or deliberately misclassifies that individual as an employee. Read more about why it’s important to know the difference and how it can impact your tax situation.

Bookmark Tax Reporting Season in Your Calendar

The new year brings with it several tax obligations for employers. While you’re busy thinking about getting your income tax return filed, don’t forget your wage reporting obligations (W2s must be filed) and 1099 forms must be filed and issued to independent contractors you’ve worked with during the tax year.

Related: Corporation or LLC? What’s Best for Your Company?

Property Tax

Your local government (town, city, or county) collects property tax for business assets such as vehicles, computer equipment, software, and more. Likewise, if you do business in a commercial real estate location, the state will collect property tax on it. Check with your local tax authority to find out what you need to do to register your property and the process for assessing and making payments.

Additional Resources

For more small business tax help visit SBA’s Filing and Paying Taxes guide. The IRS Guide to Business Taxes is worth a bookmark too.

Related: Productivity Tools You Need In Your Toolbox

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Corporation or LLC? What’s Best for Your Company?

When it’s time to incorporate, many small business owners find themselves wondering which business type to choose. Gaining a clear understanding of your options can feel overwhelming, especially if you’re just getting started. Let’s take a look at some consideration points when comparing LLC vs. corporation options. But first, let’s start with a quick definition of what it means to incorporate.

What is incorporation?

When you incorporate a business, you evolve from a sole proprietorship (or general partnership) into a company that’s formally recognized by its state of incorporation. In other words, it becomes a legal business entity of its own — separate from the individuals who founded it. The new company structure often falls into two categories: a limited liability company (LLC), or a corporation (corp). In this article, we’ll be focusing on LLCs, as well as two popular types of corporations — an S corporation (S corp) and a C corporation (C corp).

No matter how you choose to incorporate, there are certain benefits you can expect — like being shielded from personal liability, as well as increased credibility with customers. There are also additional advantages and disadvantages associated with each incorporation type.

Related: How to Name Your Business

LLC vs. corporation: What’s the real story?

All incorporation options are not created equal. When deciding between a corp vs. LLC, the best choice for your business not only helps you start off on the right foot, but also acts as a foundation for your company’s ongoing success and growth. As you consider which business type is right for you, thinking both about your short and long-term goals for your company is advisable.

Limited liability company benefits

LLCs protect business owners, also referred to as members, from being held personally liable for the actions of the LLC. This limited liability typically protects you from the personal risks involved if a lawsuit were to arise concerning your business — safeguarding your personal assets. A couple additional benefits of an LLC include:

  • Flexibility in management. Corporations have a set management structure where directors oversee the major business decisions and officers are responsible for the day-to-day running of the business. LLCs do not have the same formal management structure.
  • Pass-through taxation. With pass-through taxation, taxes are not paid at the business level. If you choose to become an LLC, income/loss would be reported on your personal tax return. If any taxes were due, they would be paid on the individual level.

Related: Your Startup is Up and Running. What Now?

Corporation characteristics

When evaluating types of corporations, many business owners consider taxation to be the most noteworthy difference between S corporations and C corporations. In a nutshell, an S corp is a “pass-through” tax entity, like the LLC. In contrast, C corps are taxed as separate entities. They are also subject to “double taxation” if corporate profits are distributed to owners (shareholders) in the form of dividends. C corporations pay tax on their profits first at the entity level and then owners pay taxes at the individual level on profits received as dividends, resulting in the double tax.

LLC vs. corporation: Other key differences

We’ve already noted taxation and management as two distinctions between limited liability companies (LLCs) and corporations, but there are other key differences worth highlighting, including:

  • Business losses. The “S corporation advantage,” allows business owners to use business losses — like those incurred during the startup phase — on their personal tax returns as deductions.
  • Self-employment taxes. An S corp can provide savings on self-employment or Social Security/Medicare taxes, and it allows owners to offset non-business income with losses from the business — unlike a C corp which is a completely separate tax entity.
  • Ownership restrictions. Neither the LLC nor the C corporation have restrictions on the number of owners the business can have or who can be an owner. S corporations, however, have a number of restrictions. S corporations can have no more than 100 owners, and owners cannot be “non-resident aliens.” Additionally, S corporations can not be owned by C corporations, LLCs, other S corporations or non-qualified trusts.
  • Dividends and venture capitalists. C corps are often the preferred incorporation choice of developing businesses. Owners can hold different types of stock interests (including preferred and common stock), which allow for different levels of dividends. This is one reason why venture capitalists choose C corporations when they offer funding to a business. Investors are attracted to the prospect of dividends (often higher dividends) if the corporation makes a profit.
  • Earnings. C corps can retain and accumulate earnings (within reasonable limits) from year to year.

Related: Improve Business Profits and Make My Business More Profitable

Making your choice

Need more tools to decide between an LLC vs. corporation? Our Incorporation Wizardcompares multiple business types based on the specific contingencies you enter, and our Business Type Comparison gives you an at-a-glance snapshot of how different business types compare on different characteristics. Of course, for questions specific to your particular situation, it is best to seek the advice of an attorney or accountant.

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Copyright vs. Trademark vs. Patent

Some people confuse patents, copyrights, and trademarks. Although there may be some similarities among these kinds of intellectual property protection, they are different and serve different purposes.

What Is a Copyright?

Copyright is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.

The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress.

What Is a Trademark or Servicemark?

A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms “trademark” and “mark” are commonly used to refer to both trademarks and servicemarks.

Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the Patent and Trademark Office. The registration procedure for trademarks and general information concerning trademarks is described in a separate pamphlet entitled “Basic Facts about Trademarks”.

What Is a Patent?

A patent for an invention is the grant of a property right to the inventor, issued by the Patent and Trademark Office. The term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. US patent grants are effective only within the US, US territories, and US possessions.

The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.

(Excerpted from General Information Concerning Patents, U.S. Patent and Trademark Office website)

Some additional differences between a copyright and a trademark are as follows:

1.   The purpose of a copyright is to protect works of authorship as fixed in a tangible form of expression. Thus, copyright covers: a) works of art (2 or 3 dimensional), b) photos, pictures, graphic designs, drawings and other forms of images; c) songs, music and sound recordings of all kinds; d) books, manuscripts, publications and other written works; and e) plays, movies, shows, and other performance arts.

2.   The purpose of a trademark is to protect words, phrases and logos used in federally regulated commerce to identify the source of goods and/or services.

3.   There may be occasions when both copyright and trademark protection are desired with respect to the same business endeavor. For example, a marketing campaign for a new product may introduce a new slogan for use with the product, which also appears in advertisements for the product. However, copyright and trademark protection will cover different things. The advertisement’s text and graphics, as published in a particular vehicle, will be covered by copyright – but this will not protect the slogan as such. The slogan may be protected by trademark law, but this will not cover the rest of the advertisement. If you want both forms of protection, you will have to perform both types of registration.

4.   If you are interested in protecting a title, slogan, or other short word phrase, generally you want a trademark. Copyright law does not protect a bare phrase, slogan, or trade name.

5.   Whether an image should be protected by trademark or copyright law depends on whether its use is intended to identify the source of goods or services. If an image is used temporarily in an ad campaign, it generally is not the type of thing intended to be protected as a logo.

6.   The registration processes of copyright and trademark are entirely different. For copyright, the filing fee is small, the time to obtain registration is relatively short, and examination by the Copyright Office is limited to ensuring that the registration application is properly completed and suitable copies are attached. For trademark, the filing fee is more substantial, the time to obtain registration is much longer, and examination by the Trademark Office includes a substantive review of potentially conflicting marks which are found to be confusingly similar. While copyright registration is primarily an administrative process, trademark registration is very much an adversarial process.

7.   Copyright law provides for compulsory licensing and royalty payments – there is no analogous concept in trademark law. Plus, the tests and definition of infringement are considerably different under copyright law and trademark law.

CLOTHING ITEMS

When it comes to copyright v. trademark, we get more questions about clothing than anything else. Here are a few guidelines:

1.   Anything you silk screen or otherwise display prominently on the front or back of a shirt, top, cap or hat is generally considered artwork, and therefore covered by copyright. In fact, if you send a photo of a clothing item to the U.S. Trademark Office showing your design, logo or slogan prominently displayed on the front or back, they will refuse to register it as a trademark.

2.   To qualify as a trademark, your logo or slogan must be used as the brand of the clothing item itself. In other words, your logo or slogan must be used the way clothing brands are typically used and displayed on clothing, namely, sewn into a waistband, collar, hem or pocket, or applied to a label, sticker or tag, and NOT in a way that dominates the appearance of the clothing item.

3.   The caveat, of course, is that when your design, logo or slogan is regarded as artwork – even though it can be protected by copyright – the protection only extends to the artistic configuration used. To put it more bluntly, if you have a slogan or name, copyright law can protect the artistic way you display it, but the text itself is NOT protected. Copyright law does not cover names, words or short phrases.

4.   The only way to protect a name, word, short phrase or other text, is to register it as a trademark. But this means that you have to change the way you use the mark from an artistic display to a brand name usage.

5.   Yes, it is possible to register a design, logo, name or phrase under both copyright law and trademark law, so long as you use it in two different ways and you do it consistently. Keeping the two usages of the same design or text at the same time is not an easy task, and you can end up compromising your rights under copyright or trademark, or both, very easily if you aren’t careful.

Related: Your Startup is Up and Running. What Now?

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Uniform Commercial Code? Get Familiar

1. What is the UCC?

The Uniform Commercial Code (UCC), a comprehensive code addressing most aspects of commercial law, is generally viewed as one of the most important developments in American law. The UCC text and draft revisions are written by experts in commercial law and submitted as drafts for approval to the National Conference of Commissioners on Uniform State Laws (referred to as the Uniform Law Commissioners), in collaboration with the American Law Institute. The Commissioners are all attorneys, qualified to practice law, including state and federal judges, legislators and law professors from throughout the United States and its territories. These quasi-public organizations meet and decide whether to endorse these drafts or to send them back to the experts for revision. The revision process may result in several different revisions of the original draft. Once a draft is endorsed, the Uniform Law Commissioners recommend that the states adopt these rules.

The UCC is a model code, so it does not have legal effect in a jurisdiction unless UCC provisions are enacted by the individual state legislatures as statutes. Currently, the UCC (in whole or in part) has been enacted, with some local variation, in all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands.

Related: Behaviors of Successful People

2. Organization of the UCC

The rules for each of the transactional areas covered by the UCC are collected into separate parts called an “article.” Each article is then arranged systematically  as consecutively numbered parts based upon subtopics.

As of this guide’s last update, the types of transactions included within the Code are:

  • Sales (Amended Article 2);
  • Leases (Amended Article 2A);
  • Negotiable Instruments, previously known as Commercial Paper (Revised Article 3);
  • Bank Deposits and Collections (Amended Article 4);
  • Funds Transfers (Article 4A);
  • Letters of Credit (Revised Article 5);
  • Bulk Sales, previously known as Bulk Transfers (Revised Article 6);
  • Documents of Title (Revised Article 7);
  • Investment Securities (Revised Article 8); and
  • Secured Transactions (Revised Article 9).

Article 1 of the Code contains a set of general provisions equally applicable to all subsequent articles. Articles 10 and 11 contain provisions for effective dates, repeals and transitional matters.

The primary sources for UCC research are:

  • the Code itself;
  • the Official Comments of the UCC Permanent Editorial Board (PEB);
  • the Permanent Editorial Board Commentaries; and
  • judicial opinions which interpret and apply the Code, as enacted in a particular state.

Besides the text of the Code itself, the Official Comments are almost universally treated as the most authoritative sources in the construction of the Code sections. The PEB Commentary was introduced in 1990. It seeks to resolve issues and ambiguities raised by the UCC and Official Comments, to resolve issues on which scholarly and judicial opinion differ, and to elaborate on the UCC’s role in relation to other statutes. Note that some Commentary may be superseded by later Code amendments. Lastly, a substantial body of case law exists on the UCC. UCC litigation occurs in both federal and state courts, including bankruptcy courts for matters arising under Article 9. Some Articles are less litigated than others, resulting in limited case law for certain Articles.

Related: Make The Entrepreneurial Difference

3. Primary Source Materials

A. Official Code

The Goodson Law Library has a number of publications that contain the official UCC text, the Official Comments, and the PEB Commentaries. The following list includes the most widely consulted sources:

Uniform Commercial Code: Official Text With Comments. (Current edition on Reserve; earlier editions KF890 .A447; online 1944- in HeinOnline American Law Institute Library)
This publication contains the official text of the Code, as approved by the American Law Institute and the National Conference of Commissioners on Uniform State Laws. It includes the Official Comments to the Code as well as an unofficial table of cross-references from prior uniform acts to the Code. Some appendices include earlier texts of several Articles, as well as the texts of amendments incorporated into the Code at different times. PEB Commentaries are included in one of the appendices.

WestlawNext offers the UCC text with comments in its UCC-TEXT database. PEB commentaries are available within the same database. Lexis Advance provides access to the Official Text and Comments of the Uniform Commercial Code in its its Uniform Commercial Code (U.C.C.) database. Bloomberg Lawprovides the current UCC text and commentary through the path All Legal Content > U.S. Legislative > Uniform Laws > Uniform Commercial Code (U.C.C.).

Uniform Laws Annotated (Practice & Procedure KF879.A45 U51 & online in WestlawNext: ULA database). The most extensive textual presentation of the Code, this multi-volume series contains the latest UCC Official Text, the Official Comments, PEB Commentaries, editorial section cross-references, state variations, citations to law review articles and digests of cases. An appendix reproduces the texts of earlier uniform laws that were superseded by the Code. The annual supplement pocket parts contain recent updates and case law; the online version in WestlawNext is kept up to date.

B. State UCC Laws

When adopting the UCC, states may make revisions to the model code. To view a list of state statutes adopting UCC sections, consult the Uniform Laws Annotated (Practice & Procedure KF879.A45 U51  & online in WestlawNext) Table of Laws and Rules in the print version, or the Table of Jurisdictions in the Refs & Annos section of each UCC Article on WestlawNext (ULA). The Uniform Commercial Code Reporting Service Local Codes Variation volume also provides information about state variations in UCC language; this is available in the library (KF880.A29 U544) and in the WestlawNext database Uniform Commercial Code Local Codes Variation.

State variations can also be found at the Legal Information Institute. This free website is arranged by Article number and offers links to state legislature websites containing the state enacted versions of the UCC.

C. Case Law

Uniform Commercial Code Reporting Service: Cases and Commentary and Uniform Commercial Code Case Digest. (KF880 .A29 U54 and KF880.3 U54 & online in WestlawNext)
This reporter series, published since 1965 for the 1st series and since 1986 for the 2nd series, includes cases construing sections of the UCC and provides commentary about the cases. The set also includes tables indicating state variations of the UCC and the full text of PEB Commentaries. WestlawNext contains this service in its Uniform Commercial Code Cases database (UCC-CS).

Uniform Commercial Code Reporting Service (KF880.A29 U54) and Uniform Commercial Code Case Digest (KF880.3 .U54). This companion set includes a digest that abstracts UCC cases contained in the Uniform Commercial Code Reporting Service and is arranged by UCC section number.

UCC Reporter – Digest (online in Lexis Advance) is a digest of UCC decisions in all states, arranged by UCC section with links to the full-text cases.

Related: Quick, Easy Ways to Improve Your Focus

4. Treatises and Journals

ABCs of the UCC  (library call number varies; also available online in Bloomberg Law Books & Treatises).  This American Bar Association series devotes one volume to each Article of the UCC (except Article 6). Each book highlights key provisions of the Article and includes useful tips and illustrations. Each book in this series has a different call number, based on the subject of the Article covered.  To locate the books, search the Duke Libraries catalog by entering “ABCs of the UCC” as a “Title” search and select the appropriate UCC Article.

Ronald A. AndersonAnderson on the Uniform Commercial Code, 3d ed. (KF879.5 .A2 A53 & online in WestlawNext: ANDR-UCC). This multi-volume treatise is arranged by topic. In addition to providing the official text of the UCC, it provides finding aids and extensive cross-references. Pocket parts and supplements update the print version.

William D. HawklandUniform Commercial Code Series (KF879 .A45 H38 & online in WestlawNext: HAWKLAND). Hawkland’s treatise provides a section-by-section commentary on the UCC, the Uniform Computer Information Transactions Act, and the Uniform Electronic Transactions Act.  It also includes a volume containing state variations on the official Code.

Thomas M. Quinn, Quinn’s Uniform Commercial Code Commentary and Law Digest Revised Second Edition (KF880.3 .Q45 & online in WestlawNext).  A revised second edition of this multi-volume publication was issued beginning in 2001, offering a quick capsule survey of UCC case law developments. It is arranged by UCC section number and includes helpful information such as state variations of the UCC, editorial commentary, short case annotations and cross references to other parts of the Code.

Bradford Stone, Uniform Commercial Code in a Nutshell, 7th ed. (Reserve KF889.3.S75 2012). This broad overview of the UCC offers an introduction to the Code with a brief history and useful illustrations.

James J. White and Robert S. Summers, Uniform Commercial Code, Practitioner Treatise Series, 6th ed. (Reserve KF890 .W46). A four-volume set oriented towards practitioners, this treatise is widely quoted and cited by courts. It not only explains the Code, but also suggests how different provisions function and correlate in practice.

James J. White and Robert S. Summers.  Uniform Commercial Code, 6th ed. (Reserve KF890 .W45 2010). As part of the Hornbook Series, this one-volume book is intended for law students as a relatively concise introduction the UCC.  The book gives thorough background on Articles 2, 3, and 9 including case annotations to specific provisions of the UCC.

Damages Under the Uniform Commercial Code (KF836 .A962 & online in WestlawNext as Damages Under the UCC database). This two-volume serial is updated annually and provides comprehensive coverage of remedies available under the UCC.

Uniform Commercial Code Law Journal (v. 1 – ) (Periodicals, Level 4 & online in WestlawNext as UCC Law Journal). This journal is a commercial publication dating back to 1968. It is available in print as well as electronically and historically published once per year, but is now releasing multiple issues per year.

Searching for Books and Journals

To locate additional books on the UCC, search the Duke Libraries Catalog. When searching by subject, use search terms generated from the relevant Article’s title instead of more general terms.  For example, enter “bulk sales,” “secured transactions” or “negotiable instruments” as subject keywords in the catalog to search for these topics.

Some treatises are also available in legal research services. In Lexis Advance follow the path Browse Sources > By Practice Area > Commercial Law (UCC). In WestlawNext, the database “Commercial Law Secondary Sources” will direct you to various UCC-related treatises and law journals. In Bloomberg Law, follow Search & Browse > Books & Treatises > American Bar Association to reach The ABCs of the UCC series.

In addition to the specific journals mentioned above, general law review journals publish articles on various UCC issues. To search for relevant UCC articles use a database, such as LegalTrac, that indexes thousands of articles. You can also search the Duke Libraries Catalog using the “All” feature that will search articles.  WestlawNext offers a specialized database of legal periodicals that focuses solely on commercial law (CML-TP).

Related: Marketing Tools Entrepreneurs Should Keep Handy

5. Related Websites

American Law Institute Library, Uniform Commercial Code
This library within the HeinOnline database includes current and historical Official Text and Comments volumes, as well as archival drafts, minutes of PEB meetings, and other project materials.

Uniform Law Commissioners
The official website of the National Conference of Commissioners on Uniform State Laws contains information about UCC drafts and final acts and about state legislation based on the UCC. The site provides summaries of each Article of the UCC and legislative fact sheets on state adoptions of UCC provisions.

Uniform Commercial Code Locator
Cornell’s Legal Information Institute has created a useful chart indicating where UCC Articles are codified in each state’s statutes. For many states, it provides links directly to the state statutes. Be sure to check the currency of the linked state statutes as well as the Cornell page.

Related: Productivity Tools You Need In Your Toolbox

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