The Select Committee convened an online video conference for the purpose of considering and passing:
● The Rates and Monetary Amounts and Amendment of Revenue Laws Bill
● The Taxation Laws Amendment Bill
● The Tax Administration Laws Amendment Bill
The Committee was briefed by National Treasury and SARS who took the Committee through each clause in the Bills. The Committee looked at the policy matters identified in the Committee Report first to expedite the process and thereafter vote on each Bill and the corresponding report.
The Committee approved all three Bills and the Committee Reports to the National Council of Provinces recommending each Bils be adopted. Where political parties reserved their right to vote as they still needed to caucus with their party before voting in the NCOP, these were noted. The DA, EFF and FF+ rejected the Taxation Laws Amendment Bill. The EFF and FF+ rejected the Tax Administration Laws Amendment Bill.
The Chairperson established that there was a quorum as the Committee was voting.
The National Treasury and South African Revenue Service delegation included:
● Mr Ismail Momoniat, Deputy Director-General: Tax and Financial Sector Policy, National Treasury;
● Ms Yanga Mputa, Chief Director: Tax Policy, National Treasury;
● Mr Frans Tomasek, Head: Legislative Policy, Tax, Customs and Excise, South African Revenue Service
● Mr Chris Axelson, Chief Director: Economic Tax Analysis, National Treasury.
The Chairperson said that a study group had been undertaken and that much of what would be presented had already been decided on. He spoke about the complexity of how amendments to a Section 75 or 77 Bill are managed when Parliament rises by 11 December 2020. He had pointed out that the National Assembly had to bring the Tax Bills to the NCOP more expeditiously.
The Committee would look at the policy matters identified in the Committee Report on the Bill first to expedite and facilitate the process. It would thereafter vote on the Bill and the corresponding Committee Report.
Rates and Monetary Amounts and Amendment of Revenue Laws Bill [B26B-2020]
The Chairperson started with this more straightforward Bill and noted it comes into effect at end of February 2021. He drew the attention of Members to the Committee Report which in the first part identified the points of view of the various stakeholders. The Committee support staff had summarised both the stakeholders and National Treasury’s position. The main points are in the last part under Observations and Recommendations.
Obviously one cannot deal with tobacco only through taxes, but Treasury and the Health departments, among others, have to be involved. In the last term, we had a major briefing on the illicit tobacco trade in which the South African Police Service (SAPS), Directorate for Priority Crime Investigation (DPCI or Hawks), Treasury, and the South African Revenue Service (SARS) were present. SARS was beginning to slightly edge towards the illicit economy unit. In fact it is becoming embedded in the quarterly reports that Treasury and SARS give to the Standing Committee on Finance.
He said that having considered the concerns raised by stakeholders and the National Treasury response, the Committee accepts the amendments and further recommends to the National Treasury and other relevant agencies to augment their efforts in addressing the illicit tobacco trade, especially during the upsurge of the lockdown. National Treasury will monitor it implementation to assess the outcome. The policy issue here is that we are accepting the amendments with the concern that this matter was being monitored.
There Chairperson asked if there were points that Members wanted to raise. There were none.
He read out the Long Title. The purpose of the Rates and Monetary Amounts and Amendment of Revenue Laws Bill [B26B-2020] is to fix the rates of normal tax; to amend the Transfer Duty Act, 1949, so as to amend transfer duty monetary thresholds; to amend the Income Tax Act, 1962, so as to amend rates of tax and monetary amounts; to amend the Customs and Excise Act, 1964, so as to amend rates of duty in Schedule 1 to that Act; to insert new tariff items; to delete tariff items; to delete rebate items; to insert rebate items; to amend the Carbon Tax Act, 2019, so as to amend the rate of tax. The Bill had been sent to Members this morning.
Ms Yanga Mputa (Chief Director: Tax Policy, National Treasury) took the Committee through each clause in the Bill and said Members could interject at any time should the need for clarification or objection arise.
This deals with the increase in transfer duty rates.
The Chairperson noted this clause was straightforward and was already announced in the Minister’s speech.
This deals with the bracket adjustments in the rate of normal tax.
This concerns the increase in primary, secondary and tertiary rebates.
The Chairperson assumed that Members had already read this, and confessed that he himself had only a chance to read it the previous night and again that morning.
This addresses the increase in medical tax credits.
This pertains to the adjustments of wear and tear for the purpose of calculating travel expenditure against a car allowance. This is done every year.
This deals with the increase in the cap on foreign remuneration exemption from R1m to R1.25m in section 10 of the Income Tax Act.
This relates to the increase of limits in contributions to tax free saving accounts.
This concerns the adjustment of the formulae for calculating the rental value for fringe benefit tax for employer-provided housing.
This addresses the increase in excise duties on alcohol and tobacco in schedule 2, parts 1, 2 and 3.
This pertains to the increase in the carbon tax rate.
This deals with the short title of the Act.
The Chairperson said that this Bill had already been processed by the National Assembly and thereafter the National Treasury verifies that every word is correct. When mistakes are identified, it is formally referred to the Committee where it is then changed in the relevant report. When it is referred to the Committee, the legal advisors examine the language to affirm it is consistent with the corresponding policy decisions.
The Chairperson asked Committee Members if they had picked up anything for which they wanted to recommend a change. There were no recommended changes.
Voting on Bill
The Committee adopted the Bill.
The Chairperson asked the Committee Secretary how he should go about signing the motion of desirability and if he should do so electronically, since this was the first Bill dealt with since the COVID-19 outbreak.
Committee Secretary, Mr Mangweni, confirmed that he should sign it electronically.
The Chairperson read the motion of desirability: The Committee, having considered the Bill — it describes the Bill — reports as follows. He would sign on behalf of the Committee and attach this report. The Chairperson asked if the Committee approved the report.
The Committee adopted the Committee Report.
The Chairperson asked Mr Ryder if the Democratic Alliance wanted to register a reservation of its position on the report, or whether it was fine with this Bill.
Mr Ryder said that in his view the reports were well put together and for this reason he congratulated the team that produced them. However, the DA would nevertheless reserve its position on the report to allow the party to caucus to obtain a caucus position.
The Chairperson noted this and proceeded to ascertain the positions of other Members’ parties.
Mr S Du Toit (FF+) said the Freedom Front Plus would reserve its position.
Mr M Moletsane (EFF) said the Economic Freedom Fighters would reserve its position.
The Chairperson noted these positions.
Taxation Laws Amendment Bill [B27B-2020]
The Chairperson read out the stated purpose from the Bill itself: to amend the Estate Duty Act, 1955, so as to amend certain provisions; to amend the Income Tax Act, 1962, so as to amend certain provisions; to make new provision; to repeal certain provisions; to amend the Customs and Excise Act,1964, so as to make provision for continuations; so as to amend certain provisions; to make new provision so as to provide for an export tax on scrap metal; to amend the Value-Added Tax Act, 1991, so as to amend certain provisions; to make new provision; to amend the Securities Transfer Tax Act, 2007, so as to amend certain provisions; to amend the Employment Tax Incentive Act, 2013, so as to amend certain provisions to amend the Taxation Laws Amendment Act, 2015 so as to amend certain provisions; to amend the Revenue Laws Amendment Act, 2016 so as to amend certain provisions to amend the Taxation Laws Amendment Act, 2017, so as to amend certain provisions; to amend the Taxation Laws Amendment Act, 2019, so as to amend certain provisions; to amend the Taxation Laws Amendment Act, 2018, so as to amend certain provisions; to amend the Carbon Tax Act, 2019, so as to amend certain provisions; to amend the Taxation Laws Amendment Act, 2019 as to amend certain provisions; and to provide for matters connected therewith.
The Chairperson said that the Committee would have to go through this Bill more carefully, since it was the main policy. He referred to the Observations and Recommendations in the Committee Report. There were an unprecedented number of public submissions received by the Committee. Mr Momoniat had pointed out that there were many submissions on the sugar beverages tax.
The Chairperson remarked that for a Section 75 Bill or a Money Bill, in terms of the Constitution, the Committee cannot amend the Bill. It can propose amendments to it in Committee Report but the NCOP does not amend the Bill itself. Although we use that term, legally and technically, that is how it is done.
He explained that the National Assembly would then meet to consider the proposed amendments and either accept or reject them. This relates to section 4.2 in the Committee Report on the Taxation Laws Amendment Bill where he instructed the secretariat to strike out the word 'ignore' in the Bill and replace it with 'reject' where it originally read: "However, the equivalent National Assembly Committee, when it considers the Bill with proposed amendments, can choose to ignore the proposed amendments".
The Chairperson remarked that this differs from a Section 76 Bill where if there is a disagreement between the two Houses of Parliament on amendments, then that would result in the establishment of a Mediation Committee. This has happened on occasion since 1994. He added that when the NCOP Committee considers a Section 75 or Section 77 Money Bill, each delegate has one vote.
The Chairperson said Mr Tomasek had identified another modification: "after it reconsidered the Bill" so the final wording reads: "However, the equivalent National Assembly Committee, when it considers the Bill with proposed amendments, can choose to reject the proposed amendments after it reconsidered the Bill".
Mr Ryder said that the following is not a criticism but rather a genuine question: Should we not cover the Committee Report paragraph-by-paragraph then approve the report and then accept the Bill? He had noticed with the preceding Bill that the Committee had accepted the Bill before it discussed its corresponding report.
The Chairperson said Mr Ryder’s was a good and interesting question.
The Chairperson explained that according to the structured, legal process as he knows it, the Committee looks at the Bill first; then the Bill is voted on; then the report is voted on. However, to facilitate the processing of a Bill, it is better first to discuss the policy matters (which is contained in the report). This is something he had introduced in 1998, when he first became a chairperson. This, he clarified, is because when a policy issue is agreed upon in the Committee, it may impact on various individual clauses. In this way, if there is agreement on the policy issue, it becomes easier and quicker to agree on individual clauses which constitute the Bill, and this is how it better facilitates the process. If a Committee does not consider the policy issues first—as most Committees appear to do—and proceed to examine individual clauses, if there is disagreement, then the resolution of that disagreement will result in repetitive debates on the same policy issue affecting various clauses. Considering the Bill before the policy issues causes unnecessary delays rather than the Committee initially considering and agreeing on policy matters first.
However, the Committee has to vote on the Bill before the report, but that there is an initial informal consideration of the report before considering and voting on the Bill. He added that this facilitation process is how it has traditionally been done and that it has never been challenged in a court. Informal consideration of the report to discuss the policy before moving on to consider and then vote for the Bill, is merely a carryover from our discussion of yesterday and last week.
He asked if Mr Ryder agreed with this assessment and Mr Ryder was happy with the response.
The Chairperson said section 5.1 of the Report dealt with an export tax on scrap metal. He noted that Mr Ryder had made a submission which the Committee has added to the report and therefore he wanted to consider it. In the last paragraph of 5.1, Mr Ryder had pointed out: Many of the concerns raised in the submissions would however be more appropriately dealt with by the Department of Trade, Industry and Competition (DTIC) and the Portfolio Committee that oversees it. For this reason that Portfolio Committee had been notified of this point as it affects them. He requested Ms Mputa that her team to monitor the outcomes of this notification and review it if necessary.
He asked if Members wanted to comment and said there seemed to be unanimous agreement by all parties.
Mr Ryder said that Mr Axelson went to some trouble to point out that there are international treaties—
The Chairperson agreed and asked Mr Axelson to write up a line addressing international treaties to add to the report before the Committee adjourned. This was later added to the report.
The Chairperson said section 5.2 of the Report dealt with a tax exemption for employer-provided bursaries which he called the big one. He did not think there are major party political differences on how to manage this. The Committee position is that, given the importance of education, and the consequences of the unprecedented COVID-19 crisis for the economy and the national fiscus, and while the Committee recognises the complexities of managing this tax exemption, the Committee is not clear on how National Treasury could not have found a compromise between its concerns and those of stakeholders opposed to this amendment. Nevertheless the Committee agreed with the amendment and requests that Treasury monitors the effects of the amendment and reports back within two years.
The Chairperson said that the Committee would have to take this item to the National Assembly. He asked Mr Mangweni to initiate this process in the next 24 hours.
The Chairperson asked if there were any questions on this section.
Mr Ryder said that he disagreed with the conclusions which were reached, and said he stood firmly behind his position.
The Chairperson noted this, acknowledged Mr Ryder’s right to have a different view, and said that the DA’s reservations would be included in the report.
The Chairperson said section 5.3 of the Report dealt with section 12J on the venture capital company incentive tax regime. He had said Ms Mputa and her team had to report back on this section, because it is about accountability to Parliament. However, the conclusion reached in the report is that the Committee agrees with this amendment, with the recommendation that National Treasury engages further on this with the stakeholders concerned and reports back on the effect of the amendment and the engagement with the stakeholders within a year. He again reminded Ms Mputa that they needed to deliver a report on this. He assigned to the support staff the task of ensuring that this time next year that this matter is finalised.
Mr E Njadu (ANC) said that he agreed about the one year turnaround timeframe.
The Chairperson asked Members for their input. There was none. He reminded Members that objections have to be registered in the meeting, and that no post hoc objection or amendment could be accepted.
The Chairperson said section 5.5 of the Report dealt with amendment of the 183-day rule to the foreign remuneration exemption. He did not think any stakeholders took to this amendment. The points raised in section 5.6 would be referred by the Committee to the National Assembly.
The Chairperson expressed his appreciation for the high quality submissions received and the very comprehensive responses provided by the National Treasury and the South African Revenue Service.
Ms Mputa from National Treasury took the Committee through the Bill’s clauses.
This deals with the amendment to section 3 on estate duty, to clarify what constitutes a deemed property for purposes of calculating the estate duty.
The Chairperson said there was no traction on this clause.
This relates to all the amendments to definitions in the Income Tax Act, and importantly those on provident funds, and those about withdrawing from retirement funds upon emigration.
This concerns amendments aimed at the circumvention of anti-avoidance rules for trusts.
The Chairperson said the ANC feels strongly about this point.
This provides clarity on the tax treatment of expenses incurred by employees for business travel.
This deletes 'attributable to' and replaces with 'effectively connected with' in line with the tax treaties.
This clause, whose contents were submitted to Parliament via written submissions, deals with amendments on loop structures, whereby [the] government proposed to make consequential amendments in the Income Tax Act as a result of the modernisation of the exchange control.
The Chairperson recognised that this is a very technical matter, but that the Committee was fine with what the Treasury had formulated in the amendment.
This clause, whose contents were also submitted to Parliament as part of the written submissions received, concerns the amendments to the anti-avoidance provisions involving a change in residence.
This adds amendments mirroring the wording of similar amendments in 2019; this was a technical correction.
This deals with exchange control modernisation in the Income Tax Act, where Treasury deals with the taxation of the transfer of listed securities to an offshore exchange; this also came through the written submissions to the NCOP.
This addresses two important points: the first is the employer-provided bursary, the second is the amendment of the 183-day rule (the foreign remuneration exemption) in light of the 2020 travel ban. This also came through the written submissions to the NCOP.
This is amendments to anti-avoidance provisions on the taxation of foreign dividends received by residents.
This contains amendments concerning the annuitisation of provident funds.
This clause, whose contents also came via written submissions to the NCOP, clarifies the tax treatment of doubtful debts for taxpayers using IFRS as well as those not using it.
This is a technical amendment where the wording of the clauses is aligned to that of DTIC, for instance, instead of 'incentives' it is replaced by 'investments scheme'.
Clauses 15 and 16
These clauses are technical amendments which inserts a sunset date for the tax incentive for both clauses.
This seeks to remove certain anomalies in the VCC anti-avoidance measures.
Clause 18, 19 and 20
These clauses insert sunset dates for SEZ.
This inserts a sunset date for the low-cost housing deduction.
This is a technical correction. It replaces it with 'immovable property'.
This changes the word 'cryptocurrency' to 'crypto asset'.
Clauses 24 and 26
These clauses clarify the interaction between section 23 and section 23(l).
This is technical amendment. It deletes the phrase 'absolute provisions'.
This changes section 24(j): it amends the cap avoidance caused by distribution of dividends.
This inserts paragraph 23(b) in the Second Schedule.
This amends sections 1 and 25 in respect of REITs qualifying distribution, per the South African Institute of Chartered Accountants (SAICA) request.
This amends section 29A on the taxation of long-term insurance.
This amends section 31 of the Income Tax Act on transfer pricing rules.
This amends section 40CA by clarifying the rules for the acquisition of shares in exchange for debt.
This clause, whose contents also came via written submissions to the NCOP, amends section 45 by clarifying the interaction between the anti-avoidance provision of certain transactions.
This clause, whose contents also came via written submissions to the NCOP, clarifies the rollover relief for unbundling transactions.
This substitutes subsection 1(a) with the following paragraph: "(i) 20 per cent of that value if the aggregate of that value and the value of another property disposed of under a taxable donation on or after 1 March 2018until the date of that donation does not exceed R30 million’’.
This replaces the reference 31(3)(b)(i) with 31(3)(i).
This clause, whose contents also came via written submissions to the NCOP, addresses tax avoidance involving collateral lending arrangements.
This inserts paragraph (a) of the public sector funds.
This amends paragraph 3B.
Clauses 40 and 41
These clauses clarify deductions for contributions to retirement funds.
This amends paragraph 6A on the annuitisation of provident funds.
Clauses 43 and 44
These clauses clarify the wording of paragraph 5 in the Seventh Schedule to the Income Tax Act.
This mirrors the wording of similar amendments in 2019.
Clause 46, 48, 49, 50 and 55
These clauses are technical corrections. They all remove the words "and paid".
This inserts a comma after trading stock.
This is an amendment on loop structures, similar to section 90, due to exchange control modernisation.
This clarifies the capital gains treatment derived by a resident trust vested in a beneficiary of a resident.
This is a technical amendment. It revises the Income Tax Act to take into account the changes made in the Continuing Education and Training Colleges Act, 2006. It removes the words "public college".
This removes the words "basic" and "further".
This amends the Eleventh Schedule dealing with government grants.
This is a routine amendment for customs and excise duties.
Clauses 58, 59 and 60
These clauses introduce an export tax on scrap metals.
This amends the VAT Act as a result of the review of section 72 ruling for cross-border leases.
This amends the VAT Act for VAT treatment of transfers under corporate organisation rules.
This deletes subsection 22A.
This is the review of the section 72 VAT ruling. It adds in subsection (2) after paragraph (x).
This updates the provisions to take into account new paragraphs.
This clarifies the VAT treatment of irrecoverable debts.
This changes the word listing to listings.
This amends the section on securities transfer tax to clarify international organisation taxation exemption.
This clause, which goes with clause 68, provides that international organisations will be allowed exemptions from securities transfer tax in respect of agreements with such organisations.
This deals with the employment tax incentive. It clarifies the rollover relief.
Clauses 71, 72 and 73
These clauses effectively postpone the effective date of this Act to 2022.
Clauses 74 and 75
These clauses deal with all amendments in the Income Tax Act on the annuitisation of provident funds.
This is a technical correction. It deletes paragraph C.
This amends Section 6 of the Carbon Tax Act, 2019.
This postpones the effective date for changes made in section 31 of the transfer pricing to 2022.
This postpones the effective date for changes to surviving spouse tax treatment of pensions to 2022.
This provides that the short title of the Act be called the Taxation Laws Amendment Act, 2020.
The Chairperson thanked Ms Mputa for taking the Committee through all these clauses.
The Chairperson pointed to the convoluted and difficult to grasp wording of the titles of some clauses such as Clause 61 on page 28 which was 16 lines and began: Amendment of section 1 of Act 89 of 1991, as amended by section 21 of Act 136 of 1991, paragraph 1 of Government Notice 2695 of 8 November 1991… Mr Carrim joked that the ANC maintains this is not consistent with the Freedom Charter.
The Chairperson asked if anyone had any comments.
Mr Ryder asked if it was the right time for him to register his disagreement with clause 10 and his reservations with clause 15 which deals with section 12J.
The Chairperson acknowledged the DA’s disagreement and reservation, and said it would go into the report.
He added that Mr Ryder’s options were he either (1) votes for the Bill, (2) votes against the Bill, (3) abstains from voting noting reservations that need to be caucused. He said, strictly speaking, the Committee does not take the Bill to the House, but rather the Committee Report on the Bill.
Voting on Bill
The Committee then adopted the Bill.
The Chairperson asked if there was any opposition.
Mr Du Toit said the FF+ rejects the Bill.
Mr Moletsane said the EFF also rejects the Bill.
Mr Ryder said the DA also rejects the Bill.
The Chairperson acknowledged all the rejections, but recognised that the majority accepted the Bill.
The Chairperson moved on to the adoption of the Committee Report and the Committee adopted it.
Mr Du Toit said the FF+ rejects the Committee Report.
The Chairperson said that the EFF rejects the report and the DA reserves its right and joked that he was Comrade Moletsane’s spokesperson. He said that the Committee Report acknowledges what the stakeholders and Treasury have stated, and that there were no issues from the political parties.
Tax Administration Laws Amendment Bill [B28-2020]
Mr Tomasek took the Committee through the clauses:
This deletes two full stops.
This removes some obsolete language, which is offensive in the modern era.
This clarifies that the Commissioner’s approval is required. This amends section 18A. The key amendment extends the ability for conduit PBOs (that collect funds to distribute to others) to distribute those funds to government departments for approved purposes.
This exempts PBOs from having to provide for provisional tax.
This amends paragraph 13 of the Fourth Schedule to Act 58 of 1962.
This is the first of the changes around the "willfully or negligently" wording in the PAYE system.
This is a technical correction.
This updates the Customs and Excise Act to cater for any changes in the exchange control system.
Mr Tomasek said that some diplomats are abusing the ability to shop duty-free in South Africa; clearly no action can be taken against this, but the relevant departments can be notified of such issues.
This provides for assistance with additional competition in the ability to move goods between warehouses.
This is a correction to clarify corrections and cancellations.
Clauses 13, 14, 15, 16 and 17
These clauses deal with amendments to assist with the export duties that are being introduced.
This amends Section 120 of the Customs and Excise Act, 1964.
This amends Section 14 of the Value-Added Tax Act, 1991, by the substitution in subsection (1) for paragraph (a) of the following paragraph:‘‘(a) [furnish] obtain, complete and retain the form prescribed by the Commissioner [with a return].
This provides for the fact that South Africa no longer has identity documents, but rather identity cards.
This adds a provision for offences.
Clause 22 and 23
These clauses provide that if one has an return outstanding in terms of the Income Tax Act, then a refund may be refused until the outstanding return is furnished.
This inserts a comma in section 12 of the Tax Administration Act, 2011.
The Chairperson noted that there had been several debates about what that missing comma meant.
This deals with changes in respect of exchange control.
This removes the word "object" in Section 86 of the Tax Administration Act since the word has a particular, technical meaning which causes confusion in this context.
Clause 27, 28, 29 and 30
This amends Section 91 of the Tax Administration Act by the deletion of subsections (4), (5) and (6). This ties in with the amendment of sections 93 and 95.
Essentially what is being done here is that the system is being changed to support the auto-assessment concept, so that if there is no return an estimate assessment can still be done to close the tax year for those who did not need to submit a return.
This allows SARS 30 days to attempt to allocate payments which appear to be erroneous.
This relates to an amendment of section 188 of Act 28 of 2011.
This ties in with the alignment of the interest provisions so that they are all consistent.
This extends the delay in refund to taxpayers who are under criminal investigation for such a refund. A refund cannot be withheld if the investigation in question has nothing to do with such a refund.
This is the most substantive aspect of the changes around "willfully or negligently". In this provision a split can be seen between those that are offences only if willfully done (subsection 1), and offences if negligently done (subsection 2).
This deals with the short title of this Act.
The Chairperson thanked Mr Tomasek. He asked the Committee for questions; there were none.
Voting on Bill
Mr Du Toit said the FF+ rejects the Bill.
Mr Moletsane said the EFF also rejects the Bill.
Mr Ryder said the DA would abstain and confirm its support in the House.
The Committee adopted the Bill.
The Chairperson said the Bill would go to the House on Tuesday 8 November.
The Chairperson asked for a mover and seconder to adopt the Committee Report.
The Committee duly adopted the Committee Report.
The Chairperson said the Committee would take it that the DA reserves its rights and the usual stuff… the EFF opposes the report, and the FF+ opposes it. There were no objections to his assumption.
Mr Ryder said that based on Mr Tomasek’s inputs throughout the process as well as the quality of the Committee Repor, he was tempted to support it. Unfortunately he would have to caucus it first. He said well done to everyone involved.
The Chairperson acknowledged Mr Ryder’s comments. He thanked National Treasury and everyone in the Committee. National Treasury was permitted to exit the meeting.
The Committee adopted the minutes for the 25 and 26 August; 9 and 10 September; 29 October; 3, 4, 6, 10, 24, 26 November 2020. The minutes of 01/09/2020 were rejected and would be redone.
The Chairperson thanked everyone and the Committee staff and adjourned the meeting.
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