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Orders are written statements to implement a decision after a Department administrative hearing. 

A taxpayer may file an appeal with the New Mexico Court of Appeals within 30 days after the date of the decision. Appeals are decided based on the evidence and arguments presented at the administrative hearing. 



Priscilla A Montoya

On August 9, 2018, the Department issued an assessment to the Taxpayer for personal income tax due for the tax year 2017. The Taxpayer’s income tax return had been adjusted by the Department to disallow two dependent exemptions. On November 3, 2018, the Taxpayer filed a timely protest. The sole issue in this protest was whether the Taxpayer was entitled to claim her two dependent grandchildren on her 2017 return. The Department had denied the dependent exemptions because the dependents had been claimed by the dependents’ mother. Both children had been living with the Taxpayer. The determination of whether a dependent may be claimed on the New Mexico return is made by federal law which considers a qualifying child a dependent. Under the law, to claim a dependent child the Taxpayer must have a certain familial relationship, be under 24 years of age (if a student) and have the same principal place of abode. The child cannot provide more than half his or her own support and cannot file a joint return. All these criteria were met by the Taxpayer and both the dependents under her care. Yet another federal statute states that where two individuals are both claiming the same dependent, only the birth parent should be allowed to claim the child. The Hearing Officer, however, sited a series of decisions which determined that if the birth parent cannot provide more than half the child’s support costs that individual may not claim the dependent, nor may an individual claim the dependent if the child was not residing with them. In this case the Taxpayer’s dependent grandchildren were residing with her and not their mother, nor was the mother providing half their support. Because of these reasons, the Hearing Officer decided that the Taxpayer’s dependent exemptions should be allowed and ordered the assessment abated.



Apple Electrical Contractors Inc

On April 6, 2018, the Department assessed the Taxpayer in the amount of $618,186.58 in gross receipt tax, penalty, and interest. The Taxpayer then filed a formal protest of the assessment that was received by the Department on July 5, 2018. The Taxpayer did not dispute the amount of tax due, and later paid the tax principle, but argued that the penalty and interest portion of the assessment should be abated because it was not responsible for the late payment. The Taxpayer provides services to energy companies. The receipts in question were the result of services sold to one oil company located in Texas. When the Taxpayer billed its client for the services provided, the oil company said it was in possession of something called a “direct pay certificate” that would provide proof that it was making payment for the gross receipts tax directly to the Department. Though New Mexico does not use this certificate, the Taxpayer believed this explanation and then made a series of attempts to obtain the certificate from the oil company without success. The oil company was an extremely important client for the Taxpayer and eventually it simply accepted that oil company had been paying the tax without having received this document. There was also at this time no evidence to indicate that the Taxpayer ever sought independent advice from someone with knowledge of New Mexico tax law to better understand its tax obligations. Regulation NMAC provides that “gross receipts tax is imposed on persons engaging in business in New Mexico. Such persons are solely liable for payment of the tax; they are not ‘collectors’ on behalf of the state.” The obligation to pay gross receipts taxes rests squarely with the entity engaging in business in New Mexico. The Hearing Officer determined that, though the Taxpayer might feel understandably misled by the oil company, it relied unreasonably on these assurances instead of taking responsibility for understanding its own tax consequences as the law requires. The resulting tax liability, the Hearing Officer decided, derived entirely from the passivity and a lack of due diligence of the Taxpayer which falls within the definition of negligence and makes the penalty assessed by the Department correct. This having been decided, the Hearing Officer ordered that the penalty and interest to be paid and the protest denied.



Pamela Castaldi

On July 25, 2018, the Department issued an assessment to the Taxpayer for personal income tax for year 2016. On October 6, 2018, the Taxpayer filed a timely protest. The only issue in this protest was whether the Taxpayer was properly assessed when the Department denied the Taxpayer’s head of household filing status. On the New Mexico personal income tax return filing status conforms to the federal rules. The federal regulation 26 C.F.R. 1.2-2 issued by the Department of the Treasury determines whether an individual qualifies as head of household. The law has three requirements: that the Taxpayer is not married, paid more than half the cost of keeping up a home for the year, and that a qualifying person lived with the taxpayer for more than half the calendar year. The federal law considers a qualifying person to be a dependent child, of which there are five requirements. The child must have a certain familial relationship with the individual, have the same principal place of abode, and be under 24 years of age (if a student). The child must not provide more than half his or her own support and must not file a joint return. The Hearing Officer found that the Taxpayer presented credible evidence supporting each of these requirements. Ms. Castaldi was a single person who maintained a home in 2016 at her own expense and provided a home and other necessities, including food, for her adult son who was under the age of 24 at the time and attending college. The Department did not challenge the Taxpayer’s evidence or present any evidence that contradicted this evidence. Because of these reasons, the Hearing Officer granted the Taxpayer’s protest and the assessment was abated.



Halliburton Energy Services Inc

On December 8, 2015, the Taxpayer filed an application for refund with the Department for $44,454,836 in gross receipts tax for periods between 2011 and 2015. The taxpayer then filed another application for refund on December 28, 2015 for $3,462,261 in gross receipts tax for periods between 2012 and 2014. On February 11, 2016, the Department denied the first claim for refund which the Taxpayer then protested, and on March 11, 2016, the Department denied the Taxpayer’s second claim which it also protested. Both protests were consolidated into one by agreement. The Taxpayer provides hydraulic fracturing, or “fracking,” services to oil and gas companies. The primary issue to be decided in the case was whether the Taxpayer was selling products to their customers when it performed fracking. The process involves pumping into the well a mixture of water and certain chemicals to make the well more productive. The Department argued that the tangible chemicals are consumed as part of the performance of the service rather than sold. The Taxpayer argued that under the “predominant ingredient test,” where the relative costs of the chemicals are measured against the costs of the service, the chemicals could be considered the sale of a product and would qualify for a deduction under Section 7-9-65 NMSA 1978. The Hearing Officer, however, determined that a plain language reading of the statute showed that the Legislature intended to distinguish between the sale of chemicals and the sale of a service. The statute provides for a deduction for certain chemicals sold that will be then used in performing various processes, but this is distinct from the sale of a service that uses the chemicals as an ingredient in performing the process. The Hearing Officer found the test suggested by the Taxpayer to determine if the sale was a service did not recognize the intent of the statute and as interpreted by the Taxpayer would almost always result in every challenge to the deduction concluding that the transaction was a sale of tangibles. Regulation NMAC states that when tangible property is consumed in the performance of a service the tangible property is not sold, making the chemicals consumed in fracking not a sale of tangible property. Moreover, the Hearing Officer observed that fracking has been interpreted as performing services by several other states in the decisions of their state supreme courts. This having been decided, the Hearing Officer ordered the protest denied.



Rojo Concrete Construction

On July 24, 2018, the Department issued a Warrant of Levy letter to the bank of the Taxpayer containing a list of assessments of tax owed between October 1, 2010 and May 31, 2017. In response the bank issued a cashier’s check to the Department on July 30, 2018 for $18,607.95. On July 30, 2018, Mr. Guadalupe Rojo, the owner, submitted a formal protest of the levy. The main issue in this protest was whether the Department had lawfully executed collections against the Taxpayer’s bank account. The Taxpayer agreed that he owed the tax but argued that he had believed he was on a payment plan and that a levy like this could not take place. Provisions in the law allow for installment agreements with the Department which must be made in writing and require monthly payments. Once the Department enters into an agreement, “no further attempts to enforce payment of the tax by levy or injunction shall be made.” But if the Taxpayer defaults by failing to make payments or other conditions of the agreement, the Department “may proceed to enforce collection of the tax as if the agreement had not been made.” The Taxpayer had entered previous payment plans with the Department but defaulted. More recently, he explained that he had made attempts to enter into a payment plan by contacting a tax consulting firm to help him with his taxes in 2017, paying them approximately $5,000 with the goal of initiating tax payment plans with the IRS and the Department. He was unhappy with the progress they made and so, on the advice of friend, engaged another individual who held herself out to be an accountant, said she was setting up the payment plan with the Department, and requested regular payments from him in order to pay the state. The Department, however, had no record that the individual ever contacted the Department or made payments on his behalf, and he has now been unable to contact her. Though the Hearing Officer found that Mr. Rojo was honest and sympathetic, and agreed that he appeared to have a cause of action against the individual he gave money to, this did not change the fact that an actual installment agreement had not been set up with the Department. Therefore, the Hearing Officer determined that within the law the Department’s action was justified and ordered the protest denied.



Ernesto and Nancy Hurtado

On September 13, 2016, the Department assessed the Taxpayers for personal income tax, penalty, and interest for the tax years 2009 through 2015. On October 11, 2016, the Taxpayer filed a formal protest letter. The Taxpayers acknowledged that the portion of the assessment which related to Mrs. Hurtado’s business was taxable but argued that the Department was wrong when it disallowed a deduction for business losses at the federal level, increasing the tax due to New Mexico. The protest hinged upon whether Mr. Hurtado was allowed to deduct these losses from his ranching operation. The deduction of losses in excess of profits is disallowed by the state if the activity engaged in is determined not to be a for-profit activity. The determination of whether an activity is a for-profit business is made by examining nine factors. The Hearing Officer looked at each of these and decided that five of the factors had been meant. Some of the considerations were that the taxpayer had recently developed a formal business plan, had contracts with other property owners for grazing rights, and had bought land and equipment for the ranching operation. The Taxpayer has a degree in agriculture and is a member of the Farm Bureau and had consulted regularly with other ranchers. He had spent a substantial amount of time and effort in his ranching operation and expected that his assets, both cattle and land, would appreciate in value. Income had been made on the ranching operation, though the deductions taken for business losses have led to a net loss in recent years, and the Taxpayer did pay for the ranching operation with the income earned from its operations. Though other factors, the activity generating substantial losses with only occasional small profits, the Taxpayer being none reliant on the ranching operation for his livelihood, the activity being one that the Taxpayer obviously enjoys, suggested that the operation was not a for-profit business, the Hearing Officer decided that enough of these factors were met to conclude that it was for-profit and the deductions taken for business losses were appropriate. This having been decided the Hearing Officer ordered the portion of assessment related to the Taxpayer’s ranching operation be abated.



Ronald and Paula Peterson

On August 28, 2018, the Department assessed the Taxpayers for $3,425.63 in tax, interest, and penalty. This amount included $98.02 in estimated payment penalty. On August 17, 2018, the Taxpayers previously had been sent an adjustment notice stating the estimated payments recorded on their 2017 income tax return were more than the amount received by the Department. On September 29, 2018, the Taxpayers protested the Department’s assessment challenging the late penalty, underpayment penalty, and interest. The main issue to be decided in this protest was whether the Taxpayers were negligent in not meeting their requirement to make estimated tax payments when they cashed a check mistakenly sent to them by the Department refunding part of their payments. The Taxpayers had an obligation to make estimated payments for 2017. On their 2016 return they indicated that the amount of the overpayment for that year should be carried forward to the 2017 tax year and be counted toward their estimated payments. But on May 26, 2017, the Taxpayers instead received a refund check from the Department and cashed it, explaining that they had assumed the Department must have been correct to send it to them. Not until they received the adjustment notice the following year did the Taxpayers realize that a portion of their estimated payments were missing. Though they conceded they did owe the tax and the interest, the Taxpayer’s argued that they should not owe the penalty because they had not been negligent. But the Hearing Officer disagreed. The definition of negligence described in statute includes “erroneous belief or inattention.” Though the Hearing Officer agreed it was very unfortunate that the Department had made the mistake of sending the refund check, the Taxpayers had a reasonable duty of asking why they would receive such a check and the possible tax consequences of cashing it. At no time did the Taxpayers contact the Department or a tax adviser about the refund. This, the Hearing Officer decided, falls under the definition of negligence, and so ordered the penalty to be paid and the protest denied.



19-01 Silver Oak Drilling LLC.

On October 6, 2016, the Department denied the Taxpayer’s application for the High Wage Jobs Tax Credit in the amount of $1,144,314.98 for the periods between January of 2010 through December 2014. On January 4, 2017, the Taxpayer executed a protest of the denial of its application. The decision hinged on essentially two points, the first being whether the Taxpayer was an eligible employer and, secondly, the determination of the actual number of new jobs being created in the specified period. The Department argued that the Taxpayer had failed to establish that it made more than fifty percent of its sales of goods or services produced in New Mexico to persons outside the state and therefore was not an eligible employer. The Taxpayer is an oil drilling firm that provided services for two customers that made up 76 percent of their total sales. The Department had determined that each of these had received the services provided inside the state and therefore the Taxpayer could not be seen as having sold to persons outside New Mexico. But the Hearing Officer disagreed. The Department did not consider the location of the headquarters of these customers or where the companies primarily received their capital. He also concluded that it was mistaken when it interpreted that the statute meant the services provided must be received outside the state. A plain language reading of the statute would show that the Taxpayer was an eligible employer as the legislature described. The next point to be determined was whether the number of employees in new jobs calculated by the Taxpayer was correct. Here the Hearing Officer determined the Taxpayer was not precisely following the instructions provided in the statute which state the number is calculated by examining the difference between the total number of employees with high-wage economic-based jobs and the number that there were on the day prior to the date the new job was created. This is what the Department did. This having been established, the Hearing Officer ordered that the protest be granted in part and denied in part, allowing the credit for twelve positions that were disallowed by the Department because of the ineligibility of the employer and disallowing the others because of the incorrect calculation.



Discover Bank

On May 13, 2016, the Taxpayer filed a claim for refund of $233,950.59 for corporate income tax for two filing periods in 2011 and 2012. These years had been converted by the Taxpayer from calendar year reporting to fiscal year. The Department took no action on the claims and so on December 8, 2016, the Taxpayer protested the Department’s failure to act. Later, on November 6, 2017, before the Hearing on the Taxpayers protest, the Department sent a letter notifying the Taxpayer that their claim for refund had been denied. The main issue in this protest was whether the Department’s elimination of the payroll factor from the special regulatory apportionment formula for financial institutions was justified. This formula allowed the Taxpayer to arrive at a percentage to be allocated to New Mexico by comparing its payroll, property, and sales factors. Regulation NMAC provides that a financial company operating inside and outside the state may apportion using this formula, but it also provides that one of these factors may be excluded if they do not fairly represent its business activities in the state. For the two periods in question the Department adjusted the returns eliminating the payroll factor. This factor had reduced the amount of income being allocated to the state creating the refunds that were denied. The Department had determined the percentages allocated to the state for this factor was de minimis and therefore should be eliminated. However, in examining previous decisions where factors had been eliminated because of distortion, the Hearing Officer observed that the amounts had been proportionally much smaller. The Taxpayer argued that it was following the allocation allowed and that disallowing the payroll factor unfairly misrepresented its earnings so that it was being taxed partially on income earned in a different state. The Department explained that the elimination of the payroll factor was initiated because the percentage allocated was so small. The extreme numerical difference, the Department argued, made the percentages distortive. The Hearing Officer, however, found the Department’s argument insufficient to overcome the regulation allowing the Taxpayer to allocate the payroll factor. The Department, the Hearing Officer concluded, could provide no evidence that the Taxpayer had made the allocation improperly, and so decided the overpayments were valid and ordered the claims for refund approved.



Mark A & Ikesha M Owens

On February 27, 2018, the Department issued a Return Adjustment Notice notifying the Taxpayers that their return had been adjusted for 2016 denying the refund claimed. On May 22, 2018, the Taxpayers sent a letter formally protesting the denied refund. On the return the Taxpayers had claimed the Special Needs Adopted Child Tax Credit for each of the four children they had recently adopted. The main issue presented in this protest was whether Mr. and Mrs. Owens were ‘taxpayers’ as defined in the Tax Administration and Income Tax Acts. Both reside outside the state and did not have any business activity in New Mexico. The Taxpayers had argued that they were indeed taxpayers because they were subject to federal taxes, if not New Mexico taxes, but the Hearing Officer determined that this was far too broad a reading of the law which had meant individuals with income-generating activity in the state. The Taxpayers also said they believed they were engaging in business in the state because they had been receiving payments from the state. Since the foster children had been from New Mexico, the state had made payments to the Taxpayers. New Mexico had required the Taxpayers to receive training and become certified in the care of foster children. But the Hearing Officer decided that this type of activity was simply not a business activity. Foster care payments are not taxable nor could foster care ever be construed to be a business. Because the Taxpayers did not engage in business or income-generating activity within the state, they were not “taxpayers” as defined in the statutes and could not be allowed to take the credit. The Taxpayers also argued that the credit should be allowed because the instructions were not clear and left open the possibility that individuals with no tax responsibility to the state might qualify for the credits. Though the Hearing Officer agreed that this was the case, the instructions did not anywhere state that the credit would automatically be allowed if applied for. This having been determined, the Hearing Officer ordered that the Department had been correct in making the adjustment and ordered the credit disallowed.



Advanced Environmental Solutions Inc

On June 14, 2016, the Department issued an assessment in the amount of $82,069.74 for gross receipts tax, penalty, and interest. On September 7, 2016, the Taxpayer filed a formal protest of the assessment. The Department agreed later to abate a small portion of the tax when it determined that the receipts from these services were performed in Colorado. The Taxpayer provides the removal of hazardous materials under contracts with the Drug Enforcement Administration. The main issue presented in this protest was whether the Taxpayer provided services in New Mexico and, if it did, was it entitled to a deduction. The services in question were first requested by the federal agency in Virginia, performed in various sites around New Mexico, and then completed as the hazardous materials were disposed of by a third party out-of-state. The Taxpayer contended that since the service was only partially performed in New Mexico and that the most critical component of the service was done outside the state the receipts should not be taxable. The Taxpayer explained that it was contractually obligated to obtain a Certificate of Disposal verifying that the materials were properly disposed of in order to complete the service and this had to be obtained outside the state. The Hearing Officer, however, determined that this component of the service was not required by the contract to be performed outside the state, and still amounted to a service being performed in New Mexico. The Taxpayer also argued that it should be able to deduct the receipts under Section 7-9-57 NMSA 1978 as services sold to an out-of-state buyer. But the statute states the deduction is not available if the buyer “makes initial use of the product of the service in New Mexico.” The Hearing Officer determined that the primary product of the service, having the hazardous materials removed from the locations in New Mexico, was primarily received within the state, though some benefit was received partially by the agency outside the state. This having been established, the Hearing Officer ordered that the services took place in New Mexico and that the Taxpayer was not entitled to a deduction and the protest was denied.



High Desert Recovery, LLC

On November 28, 2016, the Department assessed the Taxpayer as a successor in business to West Rock, Inc for an amount of $127,764.92 in tax and $143,594.85 in interest. On December 8, 2016, the Taxpayer filed a formal protest letter. The main issue in the protest was whether the Taxpayer was a successor in business to West Rock, Inc, a company that repossesses cars, and therefore is responsible for the tax. Mr. Daniel Brown, the owner of High Dessert Recovery, LLC, was also the owner and operator of West Rock. The company had gone out of business when its sales dropped off and was no longer able to meet its liabilities. The Department contended that the Taxpayer was a successor in business because it was operated by the same person, involved in the same type of business, had taken ownership of one of its assets, and was using one of its same employees. It also shared many of the same customers and for a time used the same address. The Taxpayer argued that it should not be considered a successor since it did not purchase the company and did not share all the same shareholders. The Hearing Officer, however, agreed with the Department, determining that several factors followed by the Department provided in Regulation NMAC had been met, any one of which would have defined the company as a successor in business. Section 7-1-61 (B) states that “tangible and intangible property used in any business remains subject to liability for payment of the tax due,” even if the business is transferred to a new owner. However, West Rock’s assets were not liquidated and were simply put in storage and, according to Mr. Brown, were not worth but a few thousand dollars. In its final tax return, however, West Rock listed its tangible property alone as valued at more than $300,000. The Hearing Officer concluded, that Mr. Brown was simply avoiding the tax liability of the previous business and attempting to keep possession of its assets for later use in his current business. This having been decided, the Hearing Officer ordered the assessment to be paid by the Taxpayer and the protest was denied.



Dr Sistar Yancy and Robert D Townsend

On November 13, 2017, the Department assessed both Robert D Townsend and Dr. Sistar Yancy in the same amount, $7,619.15, for withholding tax, penalty, and interest. On December 12, 2017, the Department received Mr. Townsend’s formal protest of the assessment, and on January 10, 2018, received the protest of Dr. Yancy. The Taxpayer’s were assessed because both were on the board of directors of the Eastern Plains Housing Development Corporation, a non-profit organization dedicated to providing access to affordable housing. The main issue presented in this protest was whether board members of a non-profit corporation can be liable individually for unpaid withholding taxes of the organization. The Department had assessed the Taxpayers because they were listed as officers of the organization on file with the Secretary of State and had signed the employees pay checks. Though both agreed that they had signed checks for the organization, they argued they were not aware of the finances of the organization and had only signed for payments at the direction of the executive director. The evidence showed that the executive director never had all checks signed by one individual and so neither was aware of whether withholding tax had been paid to the state. The Taxpayers also argued that since the organization was a corporation, this protected its individual members from being responsible for its liabilities. The Hearing Officer concluded, however, that the case entirely depended on whether the Department could assess the Taxpayers as employers. Section 7-3-2(C) defines an employer as “the person having control of the payment of wages,” and so, the Hearing Officer determined, an employer cannot be interpreted as simply the individual who signs the checks. The employer is the person responsible for actually paying the wages and, moreover, who is in control of deducting the withholding and should be paying the tax. This having been established, the Hearing Officer ordered the assessments abated and granted the protest.



Estate of Richard and Diane Shoudt

On May 15, 2017, the Department filed a Notice of Claim of Lien against the Taxpayers for a total of $29,776.04 for CRS taxes owed. On August 1, 2017, the Taxpayer filed a formal protest letter. The issue to be decided in the protest was whether the Department followed the requirements set out in law when it filed the lien against the Taxpayers. In July of 2012, the Department issued 42 assessments for gross receipts tax to a business called Special Events Marketing Tal. Richard Shoudt, who is now deceased, was registered as the owner of the business, but no name appeared on the assessments other than the name of the business. The Department argued that since the business was registered by the individual later named in the lien this sufficiently followed procedure for filing the lien. The Department understood this individual to be the sole proprietor of the business and responsible for the liability. The Hearing Officer, however, disagreed, explaining that the requirements to file a lien are detailed carefully in the statutes. The notice of lien must identify the taxpayer who is liable, must identify the dates that the tax became due, and must state that New Mexico claims a lien for the amount due on an assessment. Section 7-1-3 NMSA 1978 states that the lien be issued to “a person to whom an assessment has been made.” This was not done in this case. The assessments were issued to a business which showed a CRS number but no name. Carefully identifying the Taxpayer, the Hearing Officer said, is an important and necessary step before the Department may pursue collection. An assessment provides a procedural safeguard to Taxpayers and allows them to protest. Since this was done in this case, the Hearing Officer order the lien released and the protest was granted.



Ready Tech-Go LLC

On September 6, 2012, the Department assessed the Taxpayer $368,428.10 in gross receipts tax, penalty, and interest for the periods from March 31, 2004 to March 31, 2011. On December 13, 2012, the Taxpayer’s formal protest was received by the Department. The Hearing in the case was postponed through a combination of inadvertent delays and multiple motions for continuance and rescheduling by the Taxpayer and the Department. The Taxpayer’s subsidiary, RTG Medical, is a medical staffing agency that is physically located in Nebraska and provides medical professional staffing to medical facilities across the country, several of which are in New Mexico. The main issue in this protest was whether the receipts the Taxpayer received from providing medical staffing services in New Mexico were in a disclosed agency capacity and therefore exempt from gross receipts tax. Section 7-9-3.5(A)(3)(f) NMSA 1978 states that excluded from gross receipts are “amounts received solely on behalf of another in a disclosed agency capacity.” The Taxpayer argued they were acting in this capacity when they provided services to their clients. The Hearing Officer explained, however, that Regulation NMAC gives clarity to what disclosed agency means, stating that “an agency relationship exists if a person has the power to bind a principal in a contract with a third party.” This would mean the employee, if they were not paid by the Taxpayer, could seek payment from the client of the Taxpayer, which was not the case here. The Taxpayer provided evidence of an indemnification clause in the client’s contract, as well as results from a survey they took of their own employees, many of who had assumed that the company they were working for was an agent of the medical facility. But these considerations failed to persuade the Hearing Officer. The Taxpayer simply could not compel their client to take on their own liabilities. The Taxpayer also argued that, since the company is not physically located in New Mexico the receipts could be deductible. But the Hearing Officer determined that because the services were performed in New Mexico by their own employees these services were taxable. The Hearing Officer decided that the decision not to report the receipts fell under the definition of negligence and so penalty was appropriate. For all these reasons the Hearing Officer ordered that the receipts were subject to gross receipts tax and the protest should be denied.

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