A Negligence Primer — Good Samaritan Defense

This was originally written for my EMS friends, but the basic concepts still apply:  duty, breech, causation, and damages.

Setting the stage:  It’s 3am (of course), and you just laid down after watching a Star Trek – The Next Generation marathon when the tones go off, and the dispatcher announces another of a long line of winter vehicle rollovers.  Blah, blah, blah, icy roads and drunk drivers.  Wind and snow, minor extrication, neck pain and minor bleeding from the head, the patient intoxicated but friendly.  C-collar, the requisite uncomfortable backboard, and couple of big IVs just because, and a quick drop off at the local ER.  The next afternoon you hear the patient began seizing shortly after you left the ER, and died a short time later from a massive subdural.  Three years later you get the summons and complaint, naming you, your partner, your duty supervisor, your service, the hospital, the ER Doc, the radiologist, and the high school janitor as defendants in a lawsuit claiming negligence.

First, let’s dispense with the Good Samaritan defense.  You were on duty and paid a decent hourly wage.  Therefore, you’re not covered under the statute.

Negligence in the common parlance simply means you screwed up and you should have known better.  However, in legal terms, “negligence” has a very specific meaning, and very specific elements that require evidence to reach the conclusion that someone is “legally” negligent.  If the plaintiff is unable to prove each element of negligence, then the defendant cannot be found liable.

In order to be legally negligent, the plaintiff must show that the defendant had a duty to act (duty), that the defendant failed to follow the standard of required conduct (breach), that the failure was the cause of harm to the victim (causation), and that actual harm resulted (damages.)  These four elements: duty, breach, causation, and damages, must all be proven in order to prevail.  The Good Samaritan statute, which all EMTs seem to consider when thinking of negligence, speaks to two levels of negligence – simple negligence and gross negligence.  Outside of this narrow statute, however, the level of egregiousness is relevant only in the amount of punishment given.

Let’s flesh out this discussion a bit.  “Duty” is the easy one – did you have a duty to provide care to the patient.  Yes or no.  In the above case, for example, you were on duty and being paid to respond.  Therefore, yes, you had a duty.  This is the easiest of the four elements to prove, or to defend.  You’re off duty and drive past an accident scene which already has numerous responders present.  No duty, no negligence claim.  Volunteers can sometime have a bit more difficult time, but the standard becomes whether you in any way held yourself out at the time of the event to be available to respond.  If you were “on call,” duty attaches, if not, duty likely does not attach.

“Breach” is slightly more difficult to prove, but still often relatively easy.  Did you do (or not do) something beyond or outside the industry standard?  In other words, did you breach your duty to treat a particular illness or injury in an appropriate manner?  This is gross simplification, of course, because evidence would be required at trial about what, exactly, was the “standard of care” required in the given circumstance.  This makes this particular element the most wishy-washy, as dueling experts vie for the attention of the judge or jury.

“Causation” is the often missed elements by the lay public.  This means that your actions, or inactions, actually caused the harm being alleged.  If your patient was hit in the head by a pipe wrench, and you later drop him injuring his knee, you’re only responsible for the knee injury, not the whole shebang.  This can often be difficult to determine.  For example, a COPD patient presents with severe respiratory distress.  You provide high flow oxygen, but not CPAP; when the patient continues to deteriorate you elect to sedate and intubate, causing dental trauma, increased swelling to the throat and worsening of the distress.  The patient eventually arrests due to extreme hypoxemia.  How much was your fault, if any?  Would she have continued to deteriorate regardless of your actions?

“Damages” is reasonably straight forward, if the above elements have been met and determined.  First, were there actual injuries that caused harm to the patient?  It’s the “no harm, no foul” rule of negligence.  You should have given Amiodarone, not lidocaine, for an SVT according to your medical standing orders.  But the patient persevered and lived despite your best efforts.  You had a duty to act, you breached that duty, but you did not cause compensable harm.  While you may be on the soup line because you dangerously violated your standing orders, at least you won’t end up in court.   However, if actual harm was caused by you, then you are responsible for those damages.

One can be negligent in the common sense but not be legally negligent.  While this may be of little real comfort, EMTs should have a basic understanding of the general concepts of legal negligence.  As for the scenario mentioned above?  A good attorney will bring in a lot of questions.  Was the alcohol masking signs and symptoms of head trauma the EMTs and hospital should have recognized earlier?  Should the patient have been taken to a trauma center rather than just the local ER?  Did the EMTs adequately describe for the ER staff the circumstances surrounding the crash such that the physician and staff could better assess the totality of the patient’s potential injuries?  Obviously there aren’t enough details to make any reasoned response, and in the end it may take a judge or jury to flesh out all the answers.  Such is the nature of the legal world.

Are You An Employer? Workers Compensation Required?

Do you laugh at the home and garden shows on cable TV?  Do you snort in derision watching those folks spend tens of thousands of dollars on contractors?  Do you smirk to yourself because you know you can do the same thing better, faster, and cheaper?  Well of course you do, you’re an Alaskan.  Even before Home Depot and Lowes came to town we had Spenard Builder’s Supply, Eagle Hardware, and you could quote the price of a spanner wrench at your local ACE store.  When it comes to adding on or building from scratch, no one beats an Alaskan at getting things done.  And not just with Visqueen, blue tarps, and duct tape, either.

On a normal day you could sheetrock a hanger holding Alaska Airlines’ latest 737-stretch in an easy day’s work.  But what happens when you only have a morning?  Perhaps your spouse has lined you up for a snowshoe softball game this evening, or some fish is running in some creek somewhere.  Unfortunately your best bud is rough-necking on the Slope this week, and your brother is sleeping off a 4-pack of wine coolers on a beach in Hawaii.  What now?

Well, normally if you needed a little extra help you’d head on down to Beans Café where there are plenty of folks looking for honest work.  The modern version is to check on Craig’s List from your smartphone while driving to the local man store.  Either way you’ll find some chap willing to hammer, screw, lay tile, hang ‘rock, or just generally clean up your mess when you’re done.  For a hundred bucks or a promise of fresh salmon, Alaskan men will do most anything.

Unfortunately, you have now begun to tread upon the realm of The Man.  The Government.  The State.  The usurious villainy of a democratic republic.  A homeowner, or anyone else for that matter, who chooses to hire someone to do something, must comply with all the rules and regulations just like those fancy contractors who have websites and their names on their pickups.  This can be a rude awakening for many.  You just needed someone to haul Trex around the house while you’re putting on the hot tub deck, or perhaps someone to mix and pour concrete on the motorhome pad next to the garage.  But if you’re paying them, you’re an employer in the eyes of the state.

Fortunately this probably doesn’t mean you’ll have to read up on Obamacare.  But you do have certain responsibilities.  Perhaps the foremost of real concern is workman’s compensation.  Didn’t come to mind?  Paying insurance for just hiring some dude off the internet now and again?  Actually, yes, you are responsible.  If that poor fella trips over the water hose, bangs his thumb with a hammer, or slips and cracks his head while shoveling your driveway, he is a worker by Alaska standards and you are his employer.  It is necessary to report to the state that you have worker’s compensation insurance, and of course pay necessary premiums.

There are other requirements, too, such as keeping records of your employees, tax records, immigration forms, minimum wage laws, etc. etc. etc.  If nothing ever goes wrong one never has to worry, right?  More or less.  Of course our laws aren’t written for when things go right, but for when the unexpected happens.  Let’s say that poor fella really does get hurt.  There he is banging away with the nail gun and the compressor hose bursts.  Safety glasses are for wimps, so naturally splinters and other debris fly straight to his face blinding him for all eternity.  Or at least until the trial is over.  The State will try to hold you responsible for the entirety of his medical care and later disability, and will be knocking on your door grinning from ear to ear.  Actually you’ll get a nasty little letter letting you know that a worker’s comp claim has been filed, the State presumes you are responsible for the costs, and, by the way, there will be fines galore for not having the proper insurance in place and on file.

So what does this all actually mean?  The average Joe Alaska isn’t going to run out and get worker’s compensation insurance.  He’s also not going to be checking the bonafides of his day help.  He may not be keeping records or reporting employment taxes to the IRS.  This is Alaska, free man’s country, where we take care of things up front and don’t need nor want the government standing around looking over our shoulder making sure the paint is the proper color, consistency, and lead-free.  This ain’t Bolder or San Francisco, it’s Willow, or Tok, or Aleknagik.  What it means is that we need to carefully consider what we’re doing, how we’re doing it, and who’s doing it.  We  need to remain aware that we are responsible if something untoward happens.  After an accident you’ll probably think hiring that licensed small business contractor who already has the proper employment credentials and insurance would have been faster and cheaper.  He hires the fella from Beans or off Craigslist and actually insures them.

Will anything change after reading this little blerb?  Likely not, but us attorneys are around when the unthinkable or the unknowable happens.  So if your brother is snoring away on a tropical isle and your high school buddy is raking in big coin in the oil patch and you still need help slinging mud, keep in mind you are an employer, and subject to the crushing wheels of justice.

Fun at work

“Unless you have fun, you can’t truly bring your intellect, your skills, and your deep knowledge to push the boundaries of the unknown, to invent and create.” Vandebroek

Alaska Eminent Domain

Alaska Statutes address Eminent Domain at 09.55.240 through .460.  When a governmental entity makes a taking, there are actually two portions to the valuation process.   First, the taken parcel’s value and the remaining parcel’s diminished value.   The government will  focus the target’s attention solely on parcel taken.  Typically people will forget to consider the affect to the remaining parcel.

Government offers frequently select valuation methods that support low prices.  For example they will suggest that vacant land value should be measured by a gross proportion of the whole.  By measuring the property as a percentage of gross they pay the lowest cost on the valuation.

I advise against providing the entity with a right of entry on the premises prior to resolving the property valuation and damages issues.  Absent a project deadline the entity has no pressure related to making a full and fair offer on the property.  You will generally fair better by withholding the right of entry permit.  The following provides a summary of a few of the important provisions in Alaska.

Valuation Date


  1. The valuation date for the taking is the day the government enters the property and begins construction.  Alaska Stat. 09.55.280. Wickwire v. City & Borough of Juneau, 557 P.2d 783 (Alaska 1976).
  2. The taking “. . . shall be located in the manner that will be most compatible with the greatest public good and the least private injury. . .”  Alaska Stat. 09.55.280.
  3. If the property boundaries change at all, the agency must apply for and obtain a preliminary replat approval before the acquisition and then shall also obtain a final plat.  Alaska Stat. 09.55.275.


  1. If you object to the taking, the extent of the taking, the value of the consideration paid, the manner or nature of crossings you have a right to a hearing before the court.  Alaska Stat. 09.55.300.
  2. You have a right to a jury trial as to damages and the value of property.  Alaska Stat. 09.55.320.
  3. If you do not reach an agreement on value and damages then in a court action value is established on the day the suit is filed.  Alaska Stat. 09.55.330.
  4. If those attempting to condemn the property file an action, they may also seek an order to allow them to take possession before the value is determined.  Alaska Stat. 09.55.380.  When they do this then they must also pay interest from the date of suit until the final value determination.  Alaska Stat. 09.55.330.
  5. If there is a hearing and judgment rendered, the entity taking the property must pay within 30 days of judgment.  Alaska Stat. 09.55.350.
  6. If they fail to pay then you are entitled to vacate the condemnation award.  Alaska Stat. 09.55.360.


  1. When the state takes a parcel you are entitled to the value of the parcel and all the appurtenances on the parcel.  Alaska Stat. 09.55.310(a)(1)
  2. When the state takes only a portion of a larger parcel you are entitled to the damages related to the remaining parcel that they failed to take.  Alaska Stat. 09.55.310(a)(2).
  3. When the benefit of the state’s investment to a parcel not taken, exceeds the damages to the remaining parcel, you only get the value of the parcel taken.  Alaska Stat. 09.55.310(a)(3).
  4. As far as practicable, compensation shall be assessed for each source of damages separately.  Alaska Stat. 09.55.310(b).
  5. Alaska has very little settled case law on the sources and methods of establishing other damages.  The list from other jusidictions can be very long.  Some of the more common Damages Sources include:
    1. Just compensation for real estate that is taken;
    2. Severance damages to property impacted, but not directly taken;
    3. Tenant lease value damages;
    4. Property and business fixture damages;
    5. Loss of going concern damages when a business is destroyed by a taking;
    6. Residential and homeowner relocation damages;
    7. Business relocation damages;
    8. Highway and right-of-way accesses damages;
    9. Construction related damages;
    10. Minimum compensation damages to make business owners whole;
    11. Diminution of value damages in land use cases;
    12. Attorney’s fees payments to landowners; and,
    13. Loss of land development potential damages.

To establish the individual components of each of these elements of damages you will need to have admissible evidence.  The evidence will need to be reasonably certain in the measurement of the damages.  You typically will need to enlist the services of not only counsel but, appraisers, site analysts and engineers to evaluate and present evidence supporting the value of these damages.



  1. Valuation is based on “fair market value” or the price a willing buyer would pay a willing seller for the property.  State v. Alaska Continental Dev. Corp. 630 P.2d 977 (Alaska 1980).
  2. Value is established by what the owner has lost and not what the condemner gains.  Gacksetter v. State, 618 P.2d 564 (Alaska 1980) (owner of residential property lost residence and value was set based on that loss not on the value of the gravel pit developed after condemnation).
  3. Owner’s loss in value does not include the value of the project giving rise to the project.  But, if the taking is unrelated to another project that adds value to the owner, the owner does capture the other projects value.  See, e.g., State v. Alaska Continental Dev. Corp. 630 P.2d 977 (Alaska 1980).
  4. Owner’s improvements made in anticipation of condemnation is ordinarily not relevant or admissible even with knowledge of the prospects of taking; unless, the improvements are made solely to enhance their award.  Babinec v. State, 51 P.2d 563 (Alaska 1973) rev’d on other grounds, 586 P.2d 966 (Alaska 1978).
  5. Valuing a larger parcel generally results in a lower value.
  6. Severence Damages

Attorney’s fees and experts

You are not entitled to be compensated for your experts or your counsel unless the fact finder determines that the value the government offered you was more than 10% less than the value they should have offered to you.  This rule pretty much guarantees that the government is always going to take your property at a discount to the actual full and fair value.

Alaska AHFC Energy Rebate should Not Be Taxable

Q. IS THE AHFC HOME ENERGY REBATE TAXABLE INCOME? I HEARD THAT I WILL RECEIVE A 1099 FORM FROM AHFC.   AHFC has received a legal opinion from the State of Alaska Department of Law that requires AHFC to issue a 1099-G to individuals who receive payments under this program. It is up to the recipient to contact their tax advisor about any possible tax consequences. – See more at: .  Indeed AHFC reports the amount in block 6 and reports the amount as a “taxable grant.”

The Internal Revenue Code provides for the exclusion from income of Energy conservation subsidies provided by public utilities under 26 USC § 136.

(a) Exclusion

Gross income shall not include the value of any subsidy provided (directly or indirectly) by a public utility to a customer for the purchase or installation of any energy conservation measure.
(b) Denial of double benefit
Notwithstanding any other provision of this subtitle, no deduction or credit shall be allowed for, or by reason of, any expenditure to the extent of the amount excluded under subsection (a) for any subsidy which was provided with respect to such expenditure. The adjusted basis of any property shall be reduced by the amount excluded under subsection (a) which was provided with respect to such property.
(c) Energy conservation measure
(1) In general
For purposes of this section, the term “energy conservation measure” means any installation or modification primarily designed to reduce consumption of electricity or natural gas or to improve the management of energy demand with respect to a dwelling unit.
2) Other definitions
For purposes of this subsection—

(A) Dwelling unit

The term “dwelling unit” has the meaning given such term by section 280A (f)(1).
(B) Public utility
The term “public utility” means a person engaged in the sale of electricity or natural gas to residential, commercial, or industrial customers for use by such customers. For purposes of the preceding sentence, the term “person” includes the Federal Government, a State or local government or any political subdivision thereof, or any instrumentality of any of the foregoing.
(d) Exception
This section shall not apply to any payment to or from a qualified cogeneration facility or qualifying small power production facility pursuant to section 210 of the Public Utility Regulatory Policy Act of 1978.
Other Precedent
There are no reported decisions as of the date of this post.  There are only three private letter rulings regarding the statute and its application.  The letter agreements can only be relied upon by the parties that obtained the letter rulings.  However, at least two of those letter rulings support the finding that Alaska Homeowners should not be paying tax on the AHFC energy rebates.  The other ruling appears to not be relevant.

Utility customers participating in test of “smart grid” technology utilizing new solar photovoltaic system to be installed in homes by taxpayer utility were not required to include value thereof in income per IRC § 61 because same was excludable as IRC § 136 “energy conservation measure;” nor was IRC § 6041 information reporting required. Private Letter Ruling 201046013, 2010 PLR LEXIS 2352.

As IRC § 136 did not apply to homeowner who received one-time renewable energy credit from utility upon installation of residential renewable energy system, homeowner was required to include gain from sale of associated environmental credits and benefits triggered by resulting electricity generation in income and to credit for 30% of expenditure. Private Letter Ruling 201035003, 2010 PLR LEXIS 1080.

Payments to residential customers by exempt entity to promote energy efficiency through state program were not income to recipients under I.R.C. § 61 but were energy conservation subsidies excluded under section 136; because payments were not income to customers, entity did not have to report payments under section 6041. Private Letter Ruling 200717010, 2007 PLR LEXIS 93.

It would be nice if AHFC would obtain a private letter ruling establishing that Alaska homeowners are not liable for taxes on the AHFC Energy rebate.  The cost of the letter agreement exceeds the benefit to any single homeowner.  But, AHFC would establish a lot of good will and keep more money in Alaska instead of shipping it off to DC.  Instead, they issue the 1099 and give you the following advice.  The IRS also provides advice here.  

The U.S. Treasury Department requires us to advise you that this written advice is not intended or written by our firm to be used, and cannot be used by any taxpayer, for the purpose of avoiding any penalties that may be imposed under the Internal Revenue Code. Written advice from our firm relating to Federal tax matters may not, without our express written consent, be used in promoting, marketing or recommending any entity, investment plan or arrangement to any taxpayer, other than the recipient of the written advice.

Clergy Parsonage Allowance Under Attack

In a decision released November 22, 2013, U.S. District Judge Barbara B. Crabb of the Western District of Wisconsin held that a portion of Section 107 of the tax code (the provision dealing with the clergy housing allowance is unconstitutional). Specifically, Section 107(2), which permits clergy to receive a tax-free cash housing allowance was found to violate the establishment clause of the First Amendment. Section 107(1), which allows clergy tax-free use of a church-provided parsonage, was left intact.

A copy of the case is attached, and for convenience, I have copied the judge’s order below. As you can see from the order, the judge’s injunction against the government does not take effect until the conclusion of any appeal by the government (or the deadline for appeal passes).




1. The motion for summary judgment filed by defendants Timothy Geithner and Douglas Schulman (now succeeded by Jacob Lew and Daniel Werfel), dkt. #40, is GRANTED with respect to plaintiffs’ Freedom from Religion Foundation, Inc.’s, Annie Laurie Gaylor’s and Dan Barker’s challenge to 26 U.S.C. § 107(1). Plaintiff’s complaint is DISMISSED as to that claim for lack of standing.

2. Defendants’ motion for summary judgment is DENIED as to plaintiffs’ challenge to 26 U.S.C. § 107(2). On the court’s own motion, summary judgment is GRANTED to plaintiffs as to that claim.

3. It is DECLARED that 26 U.S.C. § 107(2) violates the establishment clause of the First Amendment to the United States Constitution.

4. Defendants are ENJOINED from enforcing § 107(2). The injunction shall take effect at the conclusion of any appeals filed by defendants or the expiration of defendants’ deadline for filing an appeal, whichever is later.

5. The clerk of court is directed to enter judgment in favor of plaintiffs and close this case.

Entered this 21st day of November, 2013.

BARBARA B. CRABB District Judge

Interstate Income Tax Allocation for Corporations involved in Interstate Commerce

Uniform Division of Income Tax Purposes Act

In 1959 Alaska adopted the Uniform Division of Income for Tax Purposes Act (UDITPA).  The  National Conference of Commissioners on Uniform State Laws drafted UDITPA in 1957 to bring unify state tax codes with respect to the interstate income tax allocations for corporations involved in interstate commerce.

The Multistate Tax Compact

In 1970 Alaska adopted the Multistate Tax Compact (MTC). The MTC restated the UDITPA with some minor changes. Alaska codified the MTC  at AS 43.19.010. Per AS 43.19.010, article IV, section 9, the portion of a business’s total income apportioned to Alaska is determined by “multiplying the income by a fraction, the numerator of which is the property factor plus the payroll factor plus the sales factor, and the denominator of which is three.” The property factor is the fraction of the taxpayer’s total property and the property attributable to the taxpayer’s business in Alaska; similarly, the sales and payroll factors are fractions of the taxpayer’s respective total sales and payroll attributable to the taxpayer’s business in Alaska.

Allocation Formula for Interstate Income Tax Allocation

Alaska Statute 43.19.010, article IV, section 18 permits DOR to adjust a taxpayer’s tax burden if the statutorily mandated apportionment does not “fairly represent the extent of the taxpayer’s business activity in this state.” Subsection 18(a) allows DOR to apportion the taxpayer’s income based on separate accounting, while subsection 18(c) allows DOR to add “one or more additional factors” to the apportionment formula. The statute effectively requires that any remedy DOR enforces under section 18 be “reasonable.”

Alaska Statute 43.20.144 modifies AS 43.19.010’s apportionment scheme for all taxpayers “engaged in the production of oil or gas . . . in this state or engaged in the transportation of oil or gas by pipeline in this state.”10 Alaska Statute 43.20.144(c) provides three different apportionment formulas for such taxpayers, depending on the nature of the taxpayer’s oil or natural gas business in Alaska. Under AS 43.20.144(c)(1), a taxpayer that only transports oil or gas in Alaska is subject to a two-factor formula based on property and sales. Under AS 43.20.144(c)(2), a taxpayer that only produces oil or gas in Alaska is instead subject to a two-factor formula based on property and extraction. Finally, under AS 43.20.144(c)(3), a taxpayer that both transports and produces oil or gas in Alaska is subject to a three-factor formula based on property, sales, and extraction.

Constitutional Challenges to Interstate Income Tax Allocation

Under the Due Process and Interstate Commerce Clauses of the United States Constitution, a state “may not tax value earned outside its borders.” The central inquiry is “whether the state has given anything for which it can ask return.” But the United States Supreme Court has long recognized that taxing multi-state companies using strict geographic accounting fails to account for “the many subtle and largely unquantifiable transfers of value that take place among the components of a single enterprise.” The unitary business/formula apportionment method of taxation is meant to remedy this problem. Under this method, a taxing state first identifies the unitary business of which the taxpayer’s in-state activities are a part and then apportions the income of this unitary business to the taxing state according to a set formula.

In order for a business to be unitary, and thus amenable to formula apportionment, there must be flows of value between the parent and subsidiary. The United States Supreme Court has distinguished these flows of value from the mere passive flow of funds that arises from any parent- subsidiary relationship. Three “factors of profitability” indicate a unitary business:

  1. functional integration,
  2. centralization of management, and
  3. economies of scale.

Unitary Business Activities Supports Interstate Income Tax Allocation

  1. In Container Corp. of America v. Franchise Tax Board, the United States Supreme Court held a paperboard company to be unitary with its subsidiaries where the parent provided the subsidiaries with loans and loan guarantees, occasional assistance in obtaining equipment and fulfilling personnel needs, and general oversight and guidance. I
  2. In Alaska Gold Co. v. State, Department of Revenue, the Alaska Supreme upheld a finding of functional integration where the parent approved capital expenditures greater than $100,000, handled salaries and payroll for executives, and guaranteed the subsidiaries’ lease obligations.  
  3. In Earth Resources Co. of Alaska v. State, Department of Revenue, the Alaska Supreme Court upheld a unitary business finding where the parent provided the subsidiary with loans and loan guarantees, a uniform pay scale, salary guidelines, and a uniform retirement plan. In each of these cases the courts examined the same sorts of administrative and financial services.
  4. And in Tesoro Corporations and Subs v. State, Department of Revenue, The Alaska Supreme Court upheld a unitary business finding where the parent exercised almost complete control over the credit facilities, budgeting, cash management, project selection, personnel, uniform services in the fields of environmental compliance and safety, information services and technology, internal auditing, legal affairs, insurance, risk management, purchasing, and accounting.


 Selection of Taxation Regime Requires More Planning than Identifing a lower Rate

Just because the accountants can identify a better tax scheme in the code doesn’t mean that you can take advantage of the code.  In Tesoro’s case the company wanted both the economies of scale in management and it wanted to reduce the taxes by more favorable allocations.  Unfortunately the presence of unitary business activities precluded the independent activity allocations.  Accordingly, they now face penalties and interest from taxes outstanding for more than a decade.

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