13. Establishing clear roles and responsibilities for government and the rest of the public sector is a key aspect of fiscal transparency, because it provides a basis on which accountability for the design and implementation of fiscal policy can be assigned. Principles and practices in this regard concern the scope of government and the framework for fiscal management.
13. Establishing clear roles and responsibilities for government and the rest of the public sector is a key aspect of fiscal transparency, because it provides a basis on which accountability for the design and implementation of fiscal policy can be assigned. Principles and practices in this regard concern the scope of government and the framework for fiscal management.
The Scope of Government
The government sector should be distinguished from the rest of the public sector and the rest of the economy, and policy and management roles within the public sector should be clear and publicly disclosed.
14. The Code includes good practices relating to: (1) the structure and functions of government; (2) the allocation of responsibilities within government; (3) coordination and management of government activities; (4) relations between the government and the rest of the public sector; and (5) government involvement in the private sector.
The Structure and Functions of Government
The structure and functions of government should be clearly specified.
15. This is a basic requirement of fiscal transparency. The general government sector is defined in the United Nations (UN) System of National Accounts, 1993 (SNA) and in the current GFS Manual.9 It encompasses all institutions performing government functions as their primary activity. It should include therefore all national and subnational government units, including extrabudgetary funds, as well as all nonprofit institutions that provide mainly nonmarket services and are both controlled and mainly financed by government units.10
16. Defining the boundaries of government, and of the public sector, is a complex task, and one that is particularly challenging for countries in transition. To help achieve clarity in the description of the structure of government, it is a basic requirement of fiscal transparency that an institutional table should be published showing the structure of government and the rest of the public sector. Such tables are available for most countries in the IMF Government Finance Statistics Yearbook, but they are neither comprehensive nor current. With relatively little effort these tables could be updated. An example of good practice in defining the boundaries of government is the application of the European System of Accounts, 1995 (ESA) to economic statistics in European Union countries.11 Best practice in this area is that there should be full compliance with SNA definitions of economic sectors.
17. Government functions are those related to the implementation of public policy through the provision of nonmarket services, and the redistribution of income and wealth, financed primarily by taxes and other compulsory levies on nongovernment sectors. Separation of these functions from the monetary and commercial activities of government helps to establish clear accountability for the conduct of these very different activities and facilitates assessment of the macroeconomic impact of the fiscal activities of government. Although clarity of roles and responsibilities is required by the Code, the policy question as to whether, and to what extent, government should carry out commercial activities goes beyond transparency and is not addressed; nor is any specific form of institutional separation between commercial and noncommercial activities of government (or the public sector) advocated.
18. All government functions are fiscal activities. However, some fiscal activities are carried out by nongovernment public sector agencies whose primary activity is monetary or commercial. Such activities are referred to as being quasi-fiscal to indicate that they are not the primary activities of the agencies conducting them, and that their fiscal effects are not usually reflected in fiscal reports for the general government (as they would be, for instance, if the commercial or monetary institution was fully compensated from the central government budget for undertaking a quasi-fiscal activity). A central feature of fiscal transparency therefore is the open conduct of all fiscal activity, no matter where it takes place. For this reason, and to establish clear accountability, it is also important to distinguish the government from the central bank, public financial institutions, and nonfinancial public enterprises.12 Where the central bank, public financial institutions, and nonfinancial public enterprises conduct extensive quasi-fiscal activities, this should be reflected in fiscal reports that cover the public sector.13
Allocation of Responsibilities Within Government
The division of responsibilities between different levels of government, and between the executive branch, the legislative branch, and the judiciary, should be well defined.
19. A clear demarcation of roles within government is essential for transparency. At the broadest level, it is necessary to define the allocation of tax powers and expenditure responsibilities between different levels of government and, at each level of government, the fiscal role of the executive and legislative branches. This is often done as part of constitutional law.
Different Levels of Government
20. The relationship between different levels of government varies widely among countries, from federations in which individual states or provinces have considerable powers, through federal structures with a strong central government, to unitary forms of government. Precise distributions of tax powers and expenditure responsibilities vary accordingly. Fiscal transparency requires that such powers and responsibilities should be based on stable principles and/or agreed formulae, and that they should be clearly stated.14 They should also be exercised in an open and consistent way. Difficulties in establishing clear intergovernmental fiscal relations are often greater in larger and more diverse countries, particularly those in the process of economic or political transition. However, a number of such countries are attempting to address these difficulties.15
Roles of the Executive, Legislative, and Judicial Branches
21. Relationships between different branches of government are determined at the highest political and legal levels, vary greatly across countries, and are often subject to change as political and administrative systems develop. A number of recent studies illustrate the important influence that budget institutions have on fiscal outcomes.16 The Code does not advocate a particular structure of government that meets the needs of fiscal management. It only requires that the roles of different branches of government in fiscal management should be clearly defined. For example, there is a need for clarity over the executive’s authority to conduct fiscal policy where the budget for the fiscal year has not been adopted by the legislature before the start of the fiscal year to which it relates. It is also important that the legislative and judicial branches play an active role in ensuring the availability and integrity of fiscal information.17 For example, there should be an active committee of the legislature that oversees the conduct of fiscal policy, and which facilitates civil society input into budget deliberations (e.g., through receiving public submissions). With respect to the judicial branch, taxpayers should be able to challenge the legality of taxation by appeal to the courts. As a rule, fiscal responsibilities should be defined in constitutional or administrative law. Given that these relationships may be emerging or subject to change, a high priority should be attached to clarifying ambiguity where it arises.
Coordination and Management of Government Activities
Clear mechanisms for the coordination and management of budgetary and extrabudgetary activities should be established.
22. The organization of responsibilities among central ministries (e.g., finance, economy, and planning) and spending ministries is a key issue. Countries approach this in different ways. In those countries with a tradition of development or central planning, responsibilities for fiscal management are divided between a finance ministry (responsible for the current budget) and the economy or planning ministry (responsible for the capital or development budget).18 Other countries divide responsibilities by making specific ministries or departments responsible for different fiscal management functions (e.g., macro-fiscal policy, budgeting, accounting). Countries also differ in the relative power of central ministries and spending ministries. There is no blueprint for an organizational structure that can be applied universally. However, to ensure adequate control over public finances, the division of fiscal management responsibilities should be specified.19
23. The way in which the term “budget” is defined is also crucial. In some countries, the term is restricted to the estimates related to annual appropriations of funds by the legislature. This concept, however, may capture only a small proportion of total fiscal transactions. Various kinds of operations may be set up outside the annual appropriations process, and are thus referred to as extrabudgetary, and some extrabudgetary funds (e.g., social security funds) are distinct from the general fund of government. Often there are transfers from the budget to extrabudgetary funds, and there is risk to the budget if fund revenue is lower or expenditure is higher than expected. Some countries have set up extrabudgetary funds and channel earmarked taxes to them. Although there may be valid reasons for setting up some funds outside the budget, and for earmarking, excessive use of such arrangements can diminish transparency (as well as reduce fiscal policy control and flexibility).20 It is therefore important that the activities of extrabudgetary funds are subject to the same discipline as budget appropriations. Moreover, there should be rules and regulations regarding the accountability of extrabudgetary fund management, and the accounting and auditing of extrabudgetary funds.
24. It is not uncommon for government agencies to be allowed to use revenue from fees and charges directly for expenditure (e.g., hospital fees and charges that are used by the health administration without first being transferred to the general fund of government). User charges are increasingly being used in OECD countries as part of the control and incentive mechanisms for managers of agencies. Such arrangements should be recorded in gross terms, and reported both in the budget documentation (in aggregate form) and in detail in the annual reports of the agencies concerned, so that the full extent of government activity can be properly established.
25. The relationship between the domestic budget and externally financed expenditure raises transparency issues in many developing countries. Separate, nontransparent processes for determining the size and allocation of external and other budgetary receipts are often the source of financial control problems. Transparency is best served if externally financed expenditure is integrated into budget decision making and reporting.21
26. The more general point is that all fiscal activities should be subject to review and priority setting as part of the budget process.22 They should also be open to scrutiny by the legislature and the public. This requirement should apply even to extrabudgetary funds that are independently managed and under separate legislative authority.23
Relations Between the Government and the Rest of the Public Sector
Relations between the government and nongovernment public sector agencies (i.e., the central bank, public financial institutions, and nonfinancial public enterprises) should be based on clear arrangements.
27. This is a basic requirement of fiscal transparency. Fiscal responsibilities should generally be carried out by general government, or by public sector agencies outside government under clearly specified and open arrangements. The risk of having to provide financial support to such agencies, when their financial position is unexpectedly weakened as a result of having to meet fiscal policy objectives, is then reduced. A corollary is that if government carries out either banking or commercial functions, the nature of such activities should also be transparent.
General Government and the Central Bank
28. The primary responsibility of the central bank is to achieve monetary objectives. Increasingly, central bank responsibilities are being defined to give them as much autonomy as possible within a framework that ensures appropriate accountability.24 In many countries, central bank laws emphasize the operational independence of the central bank and prohibit or restrict its direct financing of the fiscal deficit.25
29. In some countries, however, a number of activities carried out by central banks are quasi-fiscal in nature. Quasi-fiscal activities may involve operations related to the management of the financial system (e.g., subsidized lending and directed credit) or the exchange system (e.g., multiple exchange rates and import deposits).26 Such operations may be used by governments as a substitute for direct fiscal action, and will have similar economic effects in whichever part of the public sector they are conducted. They clearly need to be taken into account in assessing the overall fiscal position.27 It is also a basic requirement of fiscal transparency that links between fiscal and monetary operations of the central bank should meet the requirements of Sections 1.2 and 1.3 in the monetary and financial transparency code.28 Section 1.2 requires that the institutional relationship between monetary and fiscal operations should be clearly defined, while Section 1.3 requires that agency roles performed by the central bank on behalf of the government should be clearly defined.
General Government and Public Financial Institutions
30. Although privatization of state-owned banks has been increasing, they still account for a dominant share of the banking sector in many developing economies.29 Public financial institutions have often been set up to provide assistance of a quasi-fiscal nature, such as a development bank providing loans to specific sectors at below-market rates. Governments also use public financial institutions on a more ad hoc basis to provide quasi-fiscal assistance, for example, through policy directions on lending. A basic requirement of fiscal transparency is that the annual reports of public financial institutions should indicate the noncommercial services that the government requires them to provide.
General Government and Nonfinancial Public Enterprises
31. It is also a basic requirement of fiscal transparency that the annual reports of nonfinancial public enterprises should indicate the noncommercial services that the government requires them to provide. Nonfinancial public enterprises in many countries provide noncommercial services, usually through charging less than cost-recovery prices (e.g., providing electricity at below cost to rural consumers). In a number of countries, nonfinancial public enterprises have also been required to provide social services. These noncommercial activities may be financed by cross-subsidization between different groups of consumers and/or by incurring losses that are financed from the budget or by borrowing. In some instances, excessive prices may be charged by certain nonfinancial public enterprises, and the supernormal profits earned transferred to other enterprises or to the budget. This confuses the fiscal responsibilities of government and commercial role of nonfinancial public enterprises, makes relations between government and nonfinancial public enterprises nontransparent, and creates difficulties in holding managers of nonfinancial public enterprises accountable for their performance.
32. Best practice is that relevant disclosure and transparency requirements of Principle IV of the OECD Principles of Corporate Governance should be observed by public financial institutions and nonfinancial public enterprises. Box 3 spells out these requirements. However, a few countries are also moving in a different direction, in that the government is contracting with a non-financial public enterprise to provide a noncommercial service in return for an explicit budgetary transfer which reflects the price the government is willing to pay for the service.30 Similar contracts could also be agreed with public financial institutions.
OECD Principles of Corporate Governance: Principle IV on Disclosure and Transparency
The corporate governance framework should ensure that timely and accurate disclosure is made on all material matters regarding the corporation, including the financial situation, performance, ownership, and governance of the company.
33. Serious transparency concerns can also arise over the manner in which public financial institutions and nonfinancial public enterprises are privatized. Privatization should be conducted as openly as is consistent with sound marketing considerations. It is a basic requirement of fiscal transparency that the privatization of government assets should be open to independent audit (e.g., by a national audit body), to ensure that it is carried out in accordance with the law, that the business is properly valued, and that there is competition among bidders. Indemnities given to purchasers should also be disclosed (and included in a statement of contingent liabilities).31 INTOSAI has published Guidelines on Best Practice for the Audit of Privatizations.32
Government Involvement in the Rest of the Economy
Government involvement in the private sector (e.g., through regulation and equity ownership) should be conducted in an open and public manner, and on the basis of clear rules and procedures that are applied in a nondiscriminatory way.
34. The government interacts with the private sector in a variety of ways, and transparency in government operations may be of limited benefit if there is not clarity in all kinds of interaction with the private sector.
Regulation of the Nonbank Private Sector
35. Governments have become increasingly aware of the need for transparency in regulatory practices. General regulatory standards go beyond the scope of the Code, which only requires that government regulation of the private sector should be conducted in an open and public manner. Guidelines for government regulation are provided in the OECD Policy Recommendations on Regulatory Reform, although these are concerned with efficiency as well as transparency.33 The OECD recommendations relating to the characteristics of transparent regulations are set out in Box 4. Best practice is that these recommendations should be fully implemented.
Characteristics of Transparent Regulations
Regulations should have clearly identified policy goals, should be expressed in clear, simple terms, and should have a sound legal basis.
Public consultation on new regulations will often be desirable.
Procedures for applying regulations should be open and nondiscriminatory. They should apply equally to the public and private sectors, and should contain an appeals process.
Overlapping responsibilities among regulatory authorities should be minimized.
Regulations and their impact should be reviewed periodically in published reports.
36. There are other activities that the private sector carries out under the direction of or in conjunction with government which should share the characteristics of transparent regulations. These include the imposition of compliance costs of collecting taxes on private businesses and individuals,34 compulsory contributions to private providers of old age pensions, health and insurance, and privately financed infrastructure projects. While these are not regulations in the traditional sense, such activities are often guided by complex rules and reciprocal arrangements about which information should be openly available.
Government Intervention in the Banking Sector
37. Government regulation of the banking sector—and the financial sector more generally—should also be based on clear policy goals. Heavy government involvement in the banking sector is often associated with a failure to impose adequate accounting and disclosure practices, and to ensure that there are appropriate incentives for bank owners, managers, and regulators to manage risks prudently. An appropriate framework for bank regulation, most notably that provided by the Basle Core Principles for Effective Banking Supervision,35 and greater transparency in reporting government involvement in the banking system, including a rationale for each type of intervention, are essential components of a framework that promotes financial sector stability. The monetary and financial transparency code contains detailed good practices for government financial agencies responsible for regulation, supervision, and oversight of the financial and payment systems.36
Direct Equity Investment
38. Governments also intervene by directly acquiring private equity in companies or commercial banks. All government equity holdings should be identified in the budget documentation.37 The acquisition of new equity should be clearly explained in the budget documentation, and the policy objectives served by government equity holdings should be explained.38
The Framework for Fiscal Management
There should be a clear legal and administrative framework for fiscal management.
39. The Code includes good practices relating to: (1) budgetary and extra-budgetary activities; (2) taxation; and (3) ethical standards of behavior.
Budgetary and Extrabudgetary Activities
Any commitment or expenditure of public funds should be governed by comprehensive budget laws and openly available administrative rules.
40. The effectiveness of the budget depends on the strength of its basis in law and on supporting regulations and administrative practices. The relative importance of codified budget laws, regulations, and administrative practices varies considerably among countries. Box 5 provides a summary of different traditions of budget law. Despite these differences, there are important elements that should be embedded in all legal/administrative frameworks. Public funds can only be spent by law; the budget should be comprehensive, covering all central government transactions (albeit possibly through different funds); budget transactions should be shown in gross terms; a minister responsible for government finance should be given effective power of budget management; individual agencies should be held accountable for funds they collect and/or use; contingency or reserve provisions should specify clear and stringent conditions for use of such funds; and independently audited reports showing clearly how public funds have been used should be prepared for the legislature and the public.
Budget Law—Different Traditions
Continental European, civil law-based countries, such as France, tend to rely more on budget practices and procedures codified in detail in the law, consistent with a strong administrative control orientation in these countries. United Kingdom-based budget laws have tended to focus on broad principles of handling public funds, with detailed budget procedures reflected in regulations and administrative instructions. More recently, however, there has been a trend among some countries toward developing more comprehensive legislative frameworks that emphasize government responsibility for transparency and accountability. In the United States, much of the budget legislation is concerned with setting medium-term budget targets through the congressional budget process, because of the important role the United States Congress plays in shaping and controlling the budget.
Most developing countries have followed either a European-or United Kingdom-based budget legislative model, but in many cases have been unable to develop appropriate legal and administrative systems because of a lack of political and administrative capacity. Economies in transition are in various stages of developing a legislative basis for their budget processes, but many have difficulties in implementing realistic fiscal policies and in controlling budget execution in practice. The work of establishing a sound legal framework in these countries needs to be supported by development of the capacity to reflect that framework in realistic budgets.
41. It is common for basic principles of budget management to be embodied in a general budget system law (which may have constitutional or near constitutional status). Often, such laws are supported by specific laws governing treasury operations or the management of public debt. This latter practice has become common in economies in transition. Where a comprehensive legal framework is not in place, its development should proceed at a pace that is consistent with policy and administrative capacity.39
42. The existence of a budget law does not guarantee that its provisions will be observed in practice. There are several areas of budget law that are commonly abused, and they need special attention if fiscal transparency is to be fully achieved. These include the excessive use of supplementary budgets, abuse of contingency funds, and accumulation of payment arrears.40 All of these practices tend to reduce transparency, both in terms of aggregate control and strategic priority setting.
43. Supplementary budgets, which are presented to the legislature during a budget year to seek additions or changes in legislative authority, are transparent in the sense that they are formally presented to the legislature. Often, however, their expected impact on fiscal outcomes is not reviewed. Moreover, in some countries supplementary budgets are used to authorize spending after the fact rather than to seek legislative authority prior to spending taking place.
44. Contingency (or reserve) funds are also a common avenue for abuse of the law and a source of a lack of transparency. As noted above, a possible weakness in the budget law is that the conditions for use of contingency funds are not clearly specified. In some countries, this weakness is compounded by provisions in the budget law or the annual appropriation law that allow the use of unanticipated financial receipts to meet unspecified contingencies. In addition to ensuring that laws define the conditions under which contingency funds are used, actual practices should be closely monitored.
Taxes, duties, fees, and charges should have an explicit legal basis. Tax laws and regulations should be easily accessible and understandable, and clear criteria should guide any administrative discretion in their application.
Explicit Legal Basis for All Taxes
45. The constitutional framework of almost all countries embodies the principle that no tax may be levied unless it has a clear legal basis (although there are some differences in the application of this principle).41 It is fundamental to fiscal transparency that taxation should be under the authority of law and that the administrative application of tax laws should be subject to procedural safeguards.42 As with budget laws, however, the legal framework for taxation needs to be developed in a way that reflects policy and administrative capacity.
Accessibility and Understandability
46. Tax laws, regulations, and other documents relating to administrative interpretation of tax law should be accessible to the general public. Explanatory materials (e.g., instructions and pamphlets), usually prepared by the tax agency, should also be kept up-to-date. New budget revenue measures should be given sufficient publicity so that taxpayers understand how they might be affected. To this end, the material the tax agency uses in applying the tax laws (e.g., manuals and legal opinions) should be publicly available and there should be mechanisms in place whereby taxpayers can have their queries answered (e.g., by setting up a dedicated office in the tax agency to do so).
47. In addition to being accessible, tax laws should be understandable to the public and avoid unwarranted complexity. Tax laws should be well organized and include all elements needed to determine tax liabilities and to establish procedures for tax collection.
Clear Criteria for Administrative Application
48. A corollary of requiring that taxes be imposed under law is that administrative discretion in applying tax laws must be limited. Case-by-case negotiation of tax liabilities between officials and taxpayers should not be the general rule in any country, both because of the nontransparency of such practices and the potential for corruption. However, appropriate provision should be made for settlement of tax cases, agreement on installment payment schedules, and writing off of uncollectible amounts, all with procedural safeguards. In addition, many countries find it convenient to provide taxpayers, on request, with advance rulings on how particular transactions that they are contemplating would be treated in a subsequent tax assessment. Where this practice is followed, it is important that the rulings are publicized. Tax laws should also clearly establish the powers and limitations of the tax administration to search the premises of taxpayers, demand information from taxpayers and third parties (including banks), apply indirect methods to determine income and sales, and enforce the collection of tax arrears.
49. Clarity and precision of legislation are emphasized as a means of promoting transparency and fighting corruption with respect to customs in the Declaration of the World Customs Organization (Customs Cooperation Council), Arusha Declaration (1993),43 which sets out guidelines for a program to achieve integrity in customs administration. To limit the size and complexity of tax laws, however, it is generally preferable that the explanation of a tax administration’s powers be detailed in published administrative guidelines, policy statements or rulings, rather than being embodied in detail in the tax laws.
50. Tax administration should be organized in such a way as to minimize opportunities for collusion between taxpayers and tax officials. In this connection, administrative functions should be distributed across the tax administration, to provide a self-checking element whereby the work of staff engaged in one function serves as a control on the work performed by staff in other functions. It is also important that a tax agency does not become so fragmented that its staff cannot avoid becoming closely involved with the population it serves.
51. Internal audit systems should be established to ensure the financial accountability of tax collection staff and systems, and adherence to tax administration policies and procedures in dealings with taxpayers.
52. Information technology can also play an important role in eliminating opportunities for discretionary action as well as providing for effective monitoring of tax arrears, exemptions, appeals, and payments. The computer systems should be designed to provide a full audit trail of the information recorded in the taxpayers’ accounts, by cross-referencing this information to original source documents and to the names of the staff who entered it into the system.
53. Computer systems should have the capacity to readily exchange information among revenue departments. But it should be made clear that all tax-payer information is subject to confidentiality provisions and country-specific legal restrictions. In addition to taxes collected by the tax and customs departments, taxes collected under the social security system (if not collected by the tax department) should be accounted for in a clear manner, and audit information should be shared with tax departments. This arrangement would be facilitated by the use of a common taxpayer identification number by all revenue departments.
54. As in other areas of administration, earmarked taxes and netting operations, to the extent they are used, should be clearly shown and accounted for. If, for instance, a tax department is authorized to use a share of the revenue it collects from audits for staff bonuses or certain administrative expenditure, then the rules on the use of these funds should be clearly specified and normal accounting regulations should apply.
Taxpayer Rights and Openness of Administrative Decisions to Independent Review
55. An equally important aspect of transparency in tax and customs legislation and its administration is the system’s openness to review of administrative decisions and the extent to which government is obliged to make taxpayers aware of their rights. Taxpayers’ rights should be clearly stated and include the following: availability of timely, accurate information; fair and expeditious treatment; confidentiality in interactions with the authorities; and a reasonable penalty structure. Taxpayers should have access to a well-functioning system of administrative review of decisions, as well as the opportunity to appeal to an independent judiciary. Adjustments to taxpayers’ tax returns (e.g., following an audit) should be accompanied by clear and complete statements to taxpayers as to the reasons for adjustments. In most countries, these rights exist on paper; however, they often function imperfectly. In particular, the appeals system may fail to provide safeguards against arbitrary administrative action and keep the tax administration within the bounds of the law. A number of countries have a tax-payer bill of rights or the equivalent.44 Taxpayer rights can be established in law or incorporated in a taxpayers’ charter or equivalent which is used to communicate taxpayer rights and to hold agencies accountable for their performance.
Ethical Standards of Behavior
Ethical standards of behavior for public servants should be clear and well publicized.
56. Officials handling or making decisions about the receipt or use of public funds, and otherwise exercising their official powers, should be subject to a code of conduct that precludes unethical behavior.45 Some aspects of such a code could be included in the budget and tax legislation; other aspects may need separate legislation or regulations. The United Nations’ International Code of Conduct for Public Officials,46 which is summarized in Box 6, provides a basis for implementing a standard of ethics and for strengthening an existing standard.47 Best practice is that OECD-PUMA principles for managing ethics in the public sector should be observed.48 These principles assume that an adequate statement of core ethical standards is in place, and emphasize the necessary supporting environment, including the legal framework, clear procedures for exposing wrong-doing, political commitment, and the active promotion of ethical conduct.
Code of Conduct for Public Officials
The International Code of Conduct for Public Officials, adopted by the UN on December 12, 1996, includes the following provisions:
a public office is a position of trust, implying a duty to act in the public interest;
public officials shall avoid conflicts of interest;
public officials shall comply with any applicable requirements to disclose their personal assets and liabilities;
public officials shall not solicit or accept any gift or favor that may influence the performance of their duties;
public officials shall respect the confidentiality of any information in their possession; and
public officials shall not engage in political activity outside the scope of their office such that it impairs public confidence in the impartial performance of their duties.
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