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TAXATION LAWS AMENDMENT ACT (No. 4) 1986 No. 154 of 1986 - SECT 44
44. After section 221YH of the Principal Act the following Subdivision is
inserted in Division 3 of Part VI:
"Subdivision B-Provisional Tax Avoidance Schemes
Interpretation
"221YHAAA. (1) In this Subdivision-
'arrangement' means-
(a) any agreement, arrangement, understanding, promise or undertaking,
whether express or implied, and whether or not enforceable, or
intended to be enforceable, by legal proceedings; and
(b) any scheme, plan, proposal, action, course of action or course of
conduct, whether unilateral or otherwise;
'associate', in relation to a person (in this definition referred to as the
'family member'), means-
(a) a relative of the family member;
(b) (except for the purposes of the definition of 'family partnership') a
partner of the family member;
(c) (except for the purposes of the definition of 'family partnership') if
a person who is an associate of the family member by virtue of
paragraph (b) is a natural person-the spouse or a child of that
natural person;
(d) a partnership in which the family member is a partner or in which
another person who is an associate of the family member by virtue of
another paragraph of this definition is a partner;
(e) a trustee of a trust estate where the family member or another person
who is an associate of the family member by virtue of another
paragraph of this definition benefits or is capable (whether by the
exercise of a power of appointment or otherwise) of benefiting under
the trust, either directly or through any interposed companies,
partnerships or trusts; or
(f) a company where-
(i) the company is, or its directors are, accustomed or under an
obligation, whether formal or informal, to act in accordance
with the directions, instructions or wishes of the family
member, of another person who is an associate of the family
member by virtue of another paragraph of this definition, of a
company that is an associate of the family member by virtue of
another application of this sub-paragraph or of any 2 or more
such persons; or
(ii) the family member is, the persons who are associates of the
family member by virtue of sub-paragraph (i) and the preceding
paragraphs of this definition are, or the family member and the
persons who are associates of the family member by virtue of
that sub-paragraph and those paragraphs are, in a position to
cast, or control the casting of, more than 50% of the maximum
number of votes that might be cast at a general meeting of the
company;
'family partnership', in relation to a taxpayer, in relation to a year of
income, means a partnership where the taxpayer and at least one associate of
the taxpayer are partners in the partnership and the factor calculated in
accordance with the formula A, where-
---
B
A is the sum of the individual interests of partners in the partnership,
being-
(a) the taxpayer; and
(b) associates of the taxpayer,
in the net income, or the partnership loss, of the partnership of the year of
income; and
B is the net income, or the partnership loss, as the case may be, of the
partnership of the year of income,
exceeds 0.5;
'family partnership income', in relation to a family partnership of a
taxpayer, in relation to a year of income, means the amount included in the
assessable income of the taxpayer of the year of income under sub-section 92
(1) in respect of the net income of the partnership;
'family partnership loss', in relation to a family partnership of a taxpayer,
in relation to a year of income, means the amount of the deduction allowable
to the taxpayer under sub-section 92 (2) in the year of income in respect of
the partnership loss of the partnership;
'family trust', in relation to a person (in this definition referred to as the
'family member'), in relation to a year of income, means-
(a) a trust estate where the family member and at least one associate of
the family member benefits, or is capable (whether by the exercise of
a power of appointment or otherwise) of benefiting, at any time during
the year of income, under the trust and, in a case where there is a
net income of the trust estate of the year of income, the factor
calculated in accordance with the formula A, where-
---
B
A is the sum of the shares of the net income of the trust estate of the year
of income-
(i) included, under section 97, 98A or 100, in the assessable
income of a beneficiary, or assessable incomes of
beneficiaries, of the trust estate, being-
(A) the family member; or
(B) associates of the family member; or
(ii) not being shares to which sub-paragraph (i) applies-in respect
of which the trustee of the trust estate is liable to be
assessed under section 98 in relation to beneficiaries of the
trust estate, being-
(A) the family member; or
(B) associates of the family member; and
B is the net income of the trust estate of the year of income,
exceeds 0.5; or
(b) a trust estate where-
(i) the family member benefits, or is capable (whether by the
exercise of a power of appointment or otherwise) of benefiting,
at any time during the year of income, under the trust;
(ii) if there is a net income of the trust estate of the year of
income-the factor calculated in accordance with the formula A,
where-
---
B
A is the share of the net income of the trust estate of the year of income
included, under section 97, 98A or 100, in the assessable income of the family
member or, not being such a share, in respect of which the trustee of the
trust estate is liable to be assessed under section 98 in relation to the
family member; and
B is the sum of the shares of the net income of the trust estate of the year
of income-
(A) included, under section 97, 98A or 100, in the assessable
income of the beneficiary, or assessable incomes of
beneficiaries, of the trust estate; or
(B) not being shares to which sub-sub-paragraph (A)
applies-in respect of which the trustee of the trust
estate is liable to be assessed under section 98 in
relation to the beneficiary, or the beneficiaries, of the
trust estate,
exceeds 0.5; and
(iii) either of the following sub-sub-paragraphs apply:
(A) the trustee of the trust estate is, or the trustees of
the trust estate are, accustomed or under an obligation,
whether formal or informal, to act in accordance with the
directions, instructions or wishes of the family member,
of an associate of the family member or of any 2 or more
of such persons;
(B) the family member, an associate of the family member, or
any 2 or more such persons, may remove or appoint the
trustee, or any of the trustees, of the trust estate;
'family trust income', in relation to a family trust of a taxpayer, in
relation to a year of income, means the amount included in the assessable
income of the taxpayer of the year of income under section 97, 98A or 100 in
respect of the trust.
"(2) For the purpose only of determining whether a person is an associate of
another person within the meaning of this Subdivision, the definition of
'relative' in sub-section 6 (1) and the definition of 'associate' in
sub-section (1) of this section apply as if a reference in the definition
concerned to the spouse of a person included a reference to another person
who, although not legally married to the person, lives with the person on a
bona fide domestic basis as the husband or wife of the person.
"(3) A reference in this Subdivision to the carrying out of an arrangement by
a person includes a reference to the carrying out of an arrangement by a
person together with another person or other persons.
"(4) A reference in this Subdivision to an arrangement or a part of an
arrangement being entered into or carried out by a person for a particular
purpose shall be read as including a reference to the arrangement or the part
of the arrangement being entered into or carried out by the person for 2 or
more purposes of which that particular purpose is the dominant purpose.
"(5) A reference in this Subdivision to the net income of a partnership or the
net income of a trust estate of a year of income shall, if by virtue of Part
IIIA, the net income of the partnership or the trust estate of that year of
income included a net capital gain within the meaning of that Part, be taken
to be the amount that would have been that net income if that net capital gain
had not been so included.
"(6) A reference in this Subdivision to the partnership loss of a partnership
for a year of income shall, if by virtue of Part IIIA, a net capital gain
within the meaning of that Part was taken into account in calculating that
partnership loss, be taken to be the amount that would have been that
partnership loss if that net capital gain had not been so taken into account.
Additional estimates and information required to be set out in statement
estimating taxable income
"221YHAAB. Without limiting the generality of the information required to be
set out in a statement furnished under sub-section 221YDA (1), where a
taxpayer furnishes a statement under that sub-section setting out the
estimated taxable income of the taxpayer for a year of income (in this section
referred to as the 'current year of income'), the statement shall also
include-
(a) in a case where-
(i) the taxpayer is not a taxpayer in the capacity of a trustee;
(ii) either of the following sub-sub-paragraphs apply:
(A) the taxable income of the taxpayer of the last preceding
year of income consisted of, or included, family
partnership income in relation to a partnership that was
a family partnership of the taxpayer in relation to the
last preceding year of income or family trust income in
relation to a trust estate that was a family trust of the
taxpayer in relation to the last preceding year of
income;
(B) there was a family partnership loss of the taxpayer in
the last preceding year of income in relation to a
partnership that was a family partnership of the taxpayer
in relation to the last preceding year of income; and
(iii) the partnership or trust estate, as the case may be, is, or
might reasonably be expected to be, a family partnership or
family trust, as the case may be, of the taxpayer in relation
to the current year of income,
an estimate, in respect of the partnership or trust estate, of the family
partnership income or the family partnership loss, or the family trust income,
as the case may be, of the taxpayer for the current year of income; and
(b) in any case-such other information, estimates and explanations in
connection with the application of this Subdivision as is specified in
the form in which the statement is required to be furnished.
Provisional tax avoidance schemes relating to taxpayers other than
taxpayers in the capacity of trustees
"221YHAAC. (1) Subject to sub-section (3), where-
(a) a taxpayer other than a taxpayer in the capacity of a trustee
furnishes a statement under sub-section 221YDA (1) setting out the
estimated taxable income of the taxpayer for a year of income (in this
sub-section referred to as the 'current year of income');
(b) the Commissioner is satisfied that there is, or might reasonably be
expected to be, a family partnership or family trust of the taxpayer
in relation to the current year of income; and
(c) the Commissioner serves on the taxpayer a notice in writing stating
that the Commissioner is of the opinion that-
(i) the taxpayer has obtained or, but for this sub-section, would
obtain, a provisional tax benefit, of an amount specified in
the notice, in connection with an arrangement in respect of the
partnership or trust estate in relation to the current year of
income, being an arrangement entered into or carried out before
or after the commencement of this section; and
(ii) having regard to-
(A) the manner in which the arrangement was entered into or
carried out;
(B) the form and substance of the arrangement;
(C) the time at which the arrangement was entered into and
the length of the period during which the arrangement was
carried out;
(D) the result in relation to the operation of this Division
that, but for this sub-section, would be achieved by the
arrangement;
(E) any change in the financial position of the taxpayer that
has resulted, will result, or may reasonably be expected
to result, from the arrangement;
(F) any change in the financial position of any person who
has, or has had, any connection (whether of a business,
family or other nature) with the taxpayer, being a change
that has resulted, will result, or might reasonably be
expected to result, from the arrangement;
(G) any other consequence for the taxpayer, or for any person
referred to in sub-sub-paragraph (F), of the arrangement
having been entered into or carried out; and
(H) the nature of any connection (whether of a business,
family or other nature) between the taxpayer and any
person referred to in sub-sub-paragraph (F),
it would be concluded that the person, or one of the persons, who entered into
or carried out the arrangement or any part of the arrangement did so for the
purpose of enabling the taxpayer to obtain a provisional tax benefit in
connection with the arrangement or of enabling the taxpayer and another
taxpayer or other taxpayers each to obtain a provisional tax benefit in
connection with the arrangement (whether or not that person who entered into
or carried out the arrangement or any part of the arrangement is the taxpayer
or is the other taxpayer or one of the other taxpayers), the estimated taxable
income of the taxpayer of the current year of income shall be deemed to have
been increased by the amount of the provisional tax benefit specified in the
notice.
"(2) A reference in sub-section (1) to the obtaining by a taxpayer of a
provisional tax benefit in connection with an arrangement in respect of a
partnership or trust estate (in this sub-section referred to as the 'scheme
partnership' or the 'scheme trust estate', as the case requires) in relation
to a year of income (in this sub-section referred to as the 'current year of
income') is a reference to all of the following paragraphs being satisfied:
(a) either of the following sub-paragraphs applying:
(i) an amount not being included under sub-section 92 (1) or under
section 97, 98A or 100, as the case requires, in the assessable
income of the taxpayer of the current year of income in respect
of the net income of the scheme partnership or of the net
income of the scheme trust estate, as the case may be, where
that amount would have been so included or might reasonably be
expected to have been so included, in the assessable income of
the taxpayer of the current year of income if the arrangement
had not been entered into or carried out;
(ii) a deduction being allowable under sub-section 92 (2) to the
taxpayer in relation to the current year of income in respect
of the partnership loss of the scheme partnership where an
amount, being the whole or a part of the deduction, would not
have been allowable, or might reasonably be expected not to
have been allowable, to the taxpayer in relation to the current
year of income if the arrangement had not been entered into or
carried out;
(b) any one or more of the following sub-paragraphs applying:
(i) another amount, or other amounts, being included, or being
reasonably likely to be included, under sub-section 92 (1) or
section 97, 98A or 100, in the assessable income of the
taxpayer of any other year or years of income (including a year
of income ending before the commencement of this section) in
respect of the net income of a partnership or trust estate that
is a family partnership or a family trust, as the case may be,
of the taxpayer in relation to that other year or other years
of income where that amount or those amounts would not have
been so included, or might reasonably be expected not to have
been so included, in the assessable income of the taxpayer of
that other year of income or those other years of income if the
arrangement had not been entered into or carried out;
(ii) another amount, or other amounts, being, or being reasonably
likely to be, assessable under section 98 in any other year or
years of income in respect of a share of the taxpayer of the
net income of a trust estate that is a family trust of the
taxpayer in relation to that other year or other years of
income (including a year of income ending before the
commencement of this section) where that amount or those
amounts would not have been so assessable, or might reasonably
be expected not to have been so assessable, in that other year
of income or those other years of income if the arrangement had
not been entered into or carried out;
(iii) another amount, or other amounts, not being allowable under
sub-section 92 (2) to the taxpayer as a deduction or deductions
in relation to any other year or years of income (including a
year of income ending before the commencement of this section)
in respect of the partnership loss of a partnership that is a
family partnership of the taxpayer in relation to that other
year or other years of income where that amount or those
amounts would have been so allowable or might reasonably be
expected to have been so allowable, to the taxpayer in that
other year of income or those other years of income if the
arrangement had not been entered into or carried out;
(c) either of the following sub-paragraphs applying:
(i) provisional tax not being payable by the taxpayer in respect of
the current year of income where that provisional tax would
have been, or might reasonably be expected to have been,
payable by the taxpayer if the arrangement had not been entered
into or carried out;
(ii) the amount of provisional tax payable by the taxpayer in
respect of the current year of income being less than the
amount that would have been, or might reasonably be expected to
have been, payable by the taxpayer if the arrangement had not
been entered into or carried out, and, for the purposes of
sub-section (1), the amount of the provisional tax benefit
shall be taken to be-
(d) in a case to which paragraph (e) does not apply-the amount referred to
in whichever of sub-paragraphs (a) (i) and (ii) is applicable; or
(e) where the scheme partnership or scheme trust estate was a family
partnership, or a family trust, as the case may be, of the taxpayer in
relation to the last preceding year of income-
(i) where sub-paragraph (a) (i) applies in relation to the scheme
partnership or scheme trust estate, the taxable income of the
taxpayer of the last preceding year of income consisted of, or
included, family partnership income in relation to the scheme
partnership or family trust income in relation to the scheme
trust estate and, in the case of a scheme partnership, the
taxpayer furnished an estimate of the family partnership income
of the taxpayer in relation to the scheme partnership for the
current year of income-
(A) the amount calculated in accordance with the formula
1.11A - B, where-
A is the amount of the family partnership income of the taxpayer in relation
to the scheme partnership, or the amount of the family trust income of the
taxpayer in relation to the scheme trust estate, as the case may be, in
relation to the last preceding year of income; and
B is the amount of the estimate furnished by the taxpayer of the family
partnership income of the taxpayer in relation to the scheme partnership, or
of the family trust income of the taxpayer in relation to the scheme trust
estate, as the case may be, for the current year of income; or
(B) the amount referred to in sub-paragraph (a) (i),
whichever is the greater;
(ii) where sub-paragraph (a) (ii) applies in relation to the scheme
partnership, there was a family partnership loss of the
taxpayer in relation to the scheme partnership for the last
preceding year of income and the taxpayer furnished an estimate
of the family partnership loss of the taxpayer in relation to
the scheme partnership for the current year of income-
(A) an amount calculated in accordance with the formula
A-1.11B where-
A is the amount of the estimate furnished by the taxpayer of the family
partnership loss of the taxpayer in relation to the scheme partnership for the
current year of income; and
B is the amount of the family partnership loss of the taxpayer in relation to
the scheme partnership in relation to the last preceding year of income; or
(B) the amount referred to in sub-paragraph (a) (ii),
whichever is the greater; or
(iii) where sub-paragraph (a) (ii) applies in relation to the scheme
partnership, the taxable income of the taxpayer of the last
preceding year of income consisted of, or included, family
partnership income in relation to the scheme partnership and
the taxpayer furnished an estimate of the family partnership
loss of the taxpayer in relation to the scheme partnership for
the current year of income-
(A) the amount calculated in accordance with the formula
1.11A + B, where-
A is the amount of the family partnership income of the taxpayer in relation
to the scheme partnership in relation to the last preceding year of income;
and
B is the amount of the estimate furnished by the taxpayer of the family
partnership loss of the taxpayer in relation to the scheme partnership for the
current year of income; or
(B) the amount referred to in sub-paragraph (a) (ii),
whichever is the greater.
"(3) The amount of the estimated taxable income of a taxpayer of a year of
income shall not be increased, by virtue of an application, or applications,
of sub-section (1), to an amount that would, by virtue of sub-section 221YDA
(2) or (4), result in the amount of provisional tax payable by the taxpayer in
respect of the year of income exceeding the amount that would, but for section
221YDA, be the amount of provisional tax payable by the taxpayer in respect of
the year of income.
"(4) For the purposes of this Division, the Commissioner may treat an amount
by which the estimated taxable income of a taxpayer is increased by virtue of
an application, or applications, of sub-section (1) as being attributable to
income of a particular kind to such extent as the Commissioner considers
reasonable. Provisional tax avoidance schemes relating to trustees liable to
be assessed under section 98
"221YHAAD. (1) Subject to sub-section (3), where-
(a) a taxpayer in the capacity of a trustee of a trust estate who is
liable to be assessed under section 98 in respect of a share of the
net income of the trust estate of a year of income (in this
sub-section referred to as the 'current year of income') to which a
beneficiary is presently entitled furnishes a statement under
sub-section 221YDA (1) setting out the estimated taxable income of the
taxpayer;
(b) the Commissioner is satisfied that the trust estate is, or might
reasonably be expected to be, a family trust in relation to the
beneficiary in relation to the current year of income; and
(c) the Commissioner serves on the taxpayer a notice in writing stating
that the Commissioner is of the opinion that-
(i) the taxpayer has obtained or, but for this sub-section, would
obtain, a provisional tax benefit, of an amount specified in
the notice, in connection with an arrangement in respect of the
trust estate in relation to the current year of income in
relation to the beneficiary, being an arrangement entered into
or carried out before or after the commencement of this
section; and
(ii) having regard to-
(A) the manner in which the arrangement was entered into or
carried out;
(B) the form and substance of the arrangement;
(C) the time at which the arrangement was entered into and
the length of the period during which the arrangement was
carried out;
(D) the result in relation to the operation of this Division
that, but for this sub-section, would be achieved by the
arrangement;
(E) any change in the financial position of the taxpayer that
has resulted, will result, or may reasonably be expected
to result, from the arrangement;
(F) any change in the financial position of any person who
has, or has had, any connection (whether of a business,
family or other nature) with the taxpayer, being a change
that has resulted, will result, or may reasonably be
expected to result, from the arrangement;
(G) any other consequence for the taxpayer, or for any person
referred to in sub-sub-paragraph (F), of the arrangement
having been entered into or carried out; and
(H) the nature of any connection (whether of a business,
family or other nature) between the taxpayer and any
person referred to in sub-sub-paragraph (F),
it would be concluded that the person, or one of the persons, who entered into
or carried out the arrangement or any part of the arrangement did so for the
purpose of enabling the taxpayer to obtain a provisional tax benefit in
connection with the arrangement or of enabling the taxpayer and another
taxpayer or other taxpayers each to obtain a provisional tax benefit in
connection with the arrangement (whether or not that person who entered into
or carried out the arrangement or any part of the arrangement is the taxpayer
or is the other taxpayer or one of the other taxpayers), the estimated taxable
income of the taxpayer of the current year of income shall be deemed to have
been increased by the amount of the provisional tax benefit specified in the
notice.
"(2) A reference in sub-section (1) to the obtaining by a taxpayer of a
provisional tax benefit in connection with an arrangement in respect of a
trust estate (in this sub-section referred to as the 'scheme trust estate') in
relation to a year of income (in this sub-section referred to as the 'current
year of income') in relation to a beneficiary is a reference to all of the
following paragraphs being satisfied:
(a) an amount not being assessable under section 98 to the taxpayer in the
current year of income in respect of a share of the beneficiary of the
net income of the scheme trust estate where that amount would have
been so assessable or might reasonably be expected to have been so
assessable to the taxpayer in the current year of income if the
arrangement had not been entered into or carried out;
(b) either or both of the following sub-paragraphs applying:
(i) another amount, or other amounts, being assessable, or being
reasonably likely to be assessable, to the taxpayer or another
taxpayer under section 98 in any other year or years of income
(including a year of income ending before the commencement of
this section) in respect of a share of the beneficiary of the
net income of a trust estate that is a family trust of the
beneficiary in relation to that other year or other years of
income where that amount or those amounts would not have been
so assessable, or might reasonably be expected not to have been
so assessable, in that other year of income or those other
years of income if the arrangement had not been entered into or
carried out;
(ii) another amount, or other amounts, being included, or being
reasonably likely to be included, under sub-section 92 (1) or
section 97, 98A or 100, in the assessable income of the
beneficiary of any other year or years of income (including a
year of income ending before the commencement of this section)
in respect of the net income of a partnership or trust estate
that is a family partnership or family trust, as the case may
be, of the beneficiary in relation to that other year or other
years of income, where that amount or those amounts would not
have been so included, or might reasonably be expected not to
have been so included, in the assessable income of the
beneficiary of that other year of income or those other years
of income if the arrangement had not been entered into or
carried out;
(c) either of the following sub-paragraphs applying:
(i) provisional tax not being payable by the taxpayer in respect of
the current year of income where that provisional tax would
have been, or might reasonably be expected to have been,
payable by the taxpayer if the arrangement had not been entered
into or carried out;
(ii) the amount of provisional tax payable by the taxpayer in
respect of the current year of income being less than the
amount that would have been, or might reasonably be expected to
have been, payable by the taxpayer if the arrangement had not
been entered into or carried out, and, for the purposes of
sub-section (1), the amount of the provisional tax benefit
shall be taken to be-
(d) in a case to which paragraph (e) does not apply-the amount referred to
in paragraph (a); or
(e) where-
(i) the scheme trust estate was a family trust of the beneficiary
in relation to the last preceding year of income; and
(ii) a taxpayer in the capacity of a trustee of the scheme trust
estate was liable to be assessed under section 98 in respect of
the beneficiary's share of the net income of the scheme trust
estate of the last preceding year of income,
whichever of the following amounts is the greater:
(iii) the amount calculated in accordance with the formula 1.11A - B,
where-
A is the amount that was so assessable in respect of that share; and
B is the amount of the estimated taxable income of the taxpayer for the
current year of income;
(iv) the amount referred to in paragraph (a).
"(3) The amount of the estimated taxable income of a taxpayer of a year of
income shall not be increased, by virtue of an application, or applications,
of sub-section (1), to an amount that would, by virtue of sub-section 221YDA
(2) or (4), result in the amount of provisional tax payable by the taxpayer in
respect of the year of income exceeding the amount that would, but for section
221YDA, be the amount of provisional tax payable by the taxpayer in respect of
the year of income.
"(4) For the purposes of this Division, the Commissioner may treat an amount
by which the estimated taxable income of a taxpayer is increased by virtue of
an application, or applications, of sub-section (1) as being attributable to
income of a particular kind to such extent as the Commissioner considers
reasonable.
"(5) A reference in this section to the estimated taxable income of a taxpayer
who is liable to be assessed under section 98 in respect of a share of the net
income of a trust estate shall be read as a reference to that share. Review of
decisions
"221YHAAE. (1) A taxpayer dissatisfied with a notice served on the taxpayer
under paragraph 221YHAAC (1) (c) or 221YHAAD (1) (c) may, within 60 days after
service of the notice, lodge with the Commissioner an objection in writing
against the notice stating fully and in detail the grounds on which the
taxpayer relies.
"(2) The provisions of Division 2 of Part V (other than section 185) apply in
relation to an objection made under sub-section (1) in the same manner as
those provisions apply in relation to an objection against an assessment.
"(3) The fact that an appeal or review relating to an objection under
sub-section (1) is pending does not affect the operation of a notice referred
to in that sub-section, and provisional tax and additional tax under section
207 may be recovered as if no such review or appeal were pending.
"(4) Where, by reason of a decision of the Commissioner, of the Tribunal or of
a court in relation to an objection made under sub-section (1), a person's
liability to provisional tax is reduced-
(a) the amount by which the provisional tax is so reduced shall be taken,
for the purposes of section 207, never to have been payable; and
(b) the Commissioner shall-
(i) refund the amount of any provisional tax overpaid; or
(ii) apply the amount of any provisional tax overpaid against any
liability of the person to the Commonwealth, being a liability
arising under, or by virtue of, an Act of which the
Commissioner has the general administration, and refund any
part of the amount not so applied.".
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