Partial suspension, element by element

The Suspension Clause

Congress wrote the governmental-orders test in fewer than fifty words, enacted it four times and never changed a word of it. An employer is an eligible employer for a calendar quarter if

the operation of the trade or business described in clause (i) is fully or partially suspended during the calendar quarter due to orders from an appropriate governmental authority limiting commerce, travel, or group meetings (for commercial, social, religious, or other purposes) due to the coronavirus disease 2019 (COVID-19)

CARES Act § 2301(c)(2)(A)(ii)(I), Pub. L. 116-136, 134 Stat. 281, 348 (Mar. 27, 2020); I.R.C. § 3134(c)(2)(A)(ii)(I), added by ARPA § 9651, Pub. L. 117-2, 135 Stat. 4, 177 (Mar. 11, 2021)

The CARES Act enacted the clause for wages paid after March 12, 2020 and before January 1, 2021 (Ex. LAW-001). The Taxpayer Certainty and Disaster Tax Relief Act of 2020, Pub. L. 116-260, div. EE, §§ 206-207, extended the credit through June 30, 2021 and raised its rate without touching the clause (Ex. LAW-002). The American Rescue Plan Act of 2021 re-enacted the clause word for word as I.R.C. § 3134(c)(2)(A)(ii)(I) for wages paid after June 30, 2021 (Ex. LAW-003). The Infrastructure Investment and Jobs Act, Pub. L. 117-58, § 80604, 135 Stat. 429, 1341, ended the credit for calendar quarters beginning after September 30, 2021 and left the third quarter of 2021 in place (Ex. LAW-004).¹

The clause has seven elements, and this analysis takes them in the statute's order: orders; from an appropriate governmental authority; limiting commerce, travel, or group meetings (for commercial, social, religious, or other purposes); due to COVID-19; the operation of the trade or business fully or partially suspended; during the calendar quarter; and due to those orders. Two of the seven decide most disputes, and the rest of this page concentrates on them: what "fully or partially suspended" means, and what "due to" requires.

Every word the Service's letters add to the clause is the Service's own. The United States has said so in terms. In September 2026 it told the Western District of Michigan:

The statute does not define order, partial suspension, or the causation requirement. The parties in this case disagree about all three of these parts of the ERC.

Defendant's Opposed Motion to Stay Case at 3, County of Barry v. United States, No. 1:25-cv-01099 (W.D. Mich. Sept. 4, 2026), ECF No. 21 (Ex. LAW-085)

And the document that supplies the Service's definitions is, on the United States' own account, guidance and nothing more. In the District of Arizona the United States wrote that the Notice "is merely guidance" and "lacks the force of law," and that "the United States is not arguing that the IRS interpretation has the force of law or is entitled to deference" (Doc. 44 at 19, 31 & n.8). The court agreed: "the Notice carries no force of law and is entitled to no deference" (Doc. 49 at 27). In the Ninth Circuit the United States called the Notice "nonbinding guidance" and wrote that "[t]here is no question of deference here" (Br. for Appellees at 26, 58).² The statute controls, and the statute is read as written.

"Fully or partially suspended": a temporary delay, interruption or termination of a portion

Tri-State fixes the meaning of the phrase on definitions both parties agreed to. "Neither party claims that any part of the statute is ambiguous" (Tri-State at 8). "Suspension" is "[t]he act of temporarily delaying, interrupting, or terminating something," or "[t]he state of such delay, interruption, or termination"; "partial" is "[o]f, relating to, being, or affecting only a part; not total" (Tri-State at 8, quoting Black's Law Dictionary (12th ed. 2024) and the American Heritage Dictionary (5th ed. 2018)). The United States offered its own definitions, which the court recited: a full suspension is "a temporary but entire cessation of business operations," and a partial suspension is "a temporary cessation of a portion of operations" (Tri-State at 9). From the agreed words the court held:

a "partial suspension" is a temporary delay, interruption, or termination of a portion an employer's business. The language is plain.

Tri-State Memorial Hospital v. United States, No. 2:25-cv-0181-TOR, ECF No. 38, at 9 (E.D. Wash. May 28, 2026)

Three consequences follow from the holding, and the court drew each of them. First, any real portion suffices. The court gave the Notice the consideration Skidmore allows and adopted the phrase "more than a nominal portion" only "because it does not contradict the agreed-upon definitions of the parties" (Tri-State at 9-10). It refused to let the phrase grow: the United States asked for a disruption "comparable to a closure that surpasses basic economic impact that all employers faced" and for "a temporary closure of a significant portion of operations," and the court answered that "Defendant attempts to conflate 'more than nominal' to suggest that it means 'significant' ... However, the plain language and ordinary meaning of partial and nominal do not suggest either of those interpretations" (Tri-State at 10-11).³ Second, "delay" is suspension. The agreed definition includes "delaying" beside "interrupting" and "terminating," so a function that an order slowed, postponed or rescheduled was suspended in the statute's sense while the delay lasted. Third, the ten percent figure is not part of the test. The Notice's deeming rules are "only administrative guidance" and are "not stated in the statutory text"; "If the court were to do this, it would read requirements into the statute that do not exist. Instead, the IRS Notice provides a method for the test to be met not as a requirement to meet the test" (Tri-State at 15-16).⁴

The court also disposed of two structural arguments the United States raised. The heading "Employers Subject to Closure Due to COVID-19" does not make "suspension" mean "closure": "if the title was a textual hint that suspension meant closure, it would then not be applicable to the other methods of eligibility. It is more likely that the use of 'closure' in the title of the statute is used to recognize closure and other disruptions" (Tri-State at 12). And the gross-receipts prong does not narrow the suspension prong; it shows that "an employer may be economically affected without any partial or full suspension of trade or business operations due to a government order," which "does not make the Gross Receipts Test superfluous with the plain language interpretation of 'partial suspension' but instead logical within the scope of the act" (Tri-State at 12-13).⁵ Congress wrote a percentage threshold ("less than 80 percent of the gross receipts") into the second prong and none into the first, and "where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion" (Russello v. United States, 464 U.S. 16, 23 (1983), Ex. LAW-014).⁶

Applied to the instruments in the Library, the definition reaches every one of the following, because each is the termination, interruption or delay of a portion of an operation: a dining room closed while takeout continued; a showroom closed while the service bay stayed open; an elective-procedure function terminated while the emergency department ran; an office closed while the work went on from employees' homes under a telework mandate; a sales floor confined to four customers per thousand square feet of floor space; a plant held to a distancing rule that cut its throughput; a school building closed to students; a courthouse closed to the public. The hospital in Tri-State was open on every day of the quarters it claimed, and the court held that its cancelled non-urgent procedures, its converted clinic, its isolation rooms, its removed waiting-room chairs and its quarantined staff sufficed: "Plaintiff alleges enough facts to support the plausibility that more than a nominal portion of its operations were either interrupted or stopped due to Proclamation 20-24.2" (Tri-State at 13-15).⁷

"Due to": but-for causation

"Due to" means "because of," and "because of" is but-for causation. "Both Plaintiff and Defendant agree that the plain meaning of 'due to' is 'because of.' ... The meaning is plain and unambiguous. The Court is not required to interpret this statute further" (Tri-State at 17). The Supreme Court has held four times that an undefined "because of" phrase carries the but-for meaning. Burrage holds that such a phrase "imposes, in other words, a requirement of actual causality," which "requires proof 'that the harm would not have occurred' in the absence of—that is, but for—the defendant's conduct," and that "courts regularly read phrases like 'results from' to require but-for causality" (Burrage v. United States, 571 U.S. 204, 210-13 (2014), Ex. LAW-015). Gross holds that under the "plain language" of a "because of" statute "a plaintiff must prove that age was the 'but-for' cause" (Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009), Ex. LAW-016); Nassar equates "by reason of" with "'but for' cause" (Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 346-47, 350, 360 (2013), Ex. LAW-017); and Bostock states the test in a sentence: "a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause. This can be a sweeping standard. Often, events have multiple but-for causes" (Bostock v. Clayton County, 590 U.S. 644, 656 (2020), Ex. LAW-012).⁸

Tri-State applied the rule to the Suspension Clause. The United States argued for a "proximate, independent, and sufficient cause" standard; the court answered that "Defendant's interpretation improperly adds words into the statute" and that "[a]ccordingly, the Court recognizes that 'due to' requires 'but-for' causation" (Tri-State at 18-19, citing EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 774 (2015), Ex. LAW-013). The hospital "has alleged facts that but-for the Proclamation, Plaintiff's operations would not be partially suspended"; "The Proclamation required Plaintiff to only employ vaccinated individuals"; the changes "were not voluntary" (Tri-State at 19-20).⁹

The United States then argued that the virus, not the order, caused the hospital's changes. The court's answer governs every letter that says the same thing about any business:

Some of the interruptions and diversions were caused by COVID-19 illness, however, the required protocols and procedures to comply with the Proclamation were not. ... Sick patients and employees alone did not require additional protocols. Based on this argument, there are not many businesses or any business that would be eligible under the ERC at all. Therefore, this argument fails.

Tri-State, ECF No. 38, at 20-21

The rule is objective and it is simple to apply. Change one thing: take the order away. If no law would then have required the change in how the function operated, the order is a but-for cause of the change, and the operation of that function was suspended in part because of the order.¹⁰ "Proximate," "independent," "sufficient" and "foreseeable" are not in the clause, and adding them is, in the Supreme Court's words, "Congress's province" (Abercrombie, 575 U.S. at 774).

The method: five steps, in the same order every time

Every analytical page on this site answers the same proposition in the same order, so that a reader meets the method everywhere and can apply it to any instrument in the Library. The five steps are the order; the function of the business it reached; the change it compelled; the quarter; and the statute's answer. Each industry page applies them to that industry's functions; each quarter page applies them to the quarter; each page on the Service's fourteen sentences ends by applying them to the sentence; and each Eligibility Report applies them to the reader's own State, metro, industry and quarters, with the instruments the Library actually holds. Nothing is asserted that the record does not show.

Step one. The order: issuer, instrument, date, exhibit

The statute names the instrument and nothing else about it: not its addressee, not its subject, not its source. An order is "[a]n authoritative indication to be obeyed; a command or direction," and in law "[a] directive or command of a court"; the 2020 Merriam-Webster entry gives "to give an order to : command."¹¹ The Service's own Q&A-10 treats "orders, proclamations, or decrees" as orders "without regard to the level of enforcement," and its own list of qualifying orders includes "[a] State's emergency proclamation that residents must shelter in place for a specified period" and "[a]n order from a local official imposing a curfew on residents that impacts the operating hours of a trade or business" (Notice 2021-20, 2021-11 I.R.B. 922, Q&A-10, at 927-28). The District of Arizona held that Q&A-10 "provides a natural interpretation of the plain meaning of the statutory text" (Doc. 49 at 13-14).¹²

The first step therefore identifies the instrument the way a court would: the issuer (a governor, a State or local health officer, a board of health, a mayor, a county judge, a court, a licensing board, a federal agency, a legislature), the instrument by number and title, the date issued, the date effective, the date it ended and the instrument that ended it, and the exhibit. Every record in the Library carries those fields, together with the authority the instrument recites for itself, the operative clause verbatim and the enforcement provision. An exhibit identifier such as Ex. TX-004 (Texas Executive Order GA-09 of March 22, 2020, postponing every surgery and procedure "not immediately medically necessary") resolves to the instrument itself, its source and its citation.

The statute does not ask who the order was addressed to. A stay-at-home order addressed to residents, a school-closure order addressed to a district, a quarantine order addressed to travelers and a capacity order addressed to a venue are each "orders ... limiting commerce, travel, or group meetings," and the United States has represented that "a business may be suspended 'due to' a government order addressing a third party (such as an order that suspends the operations of a supplier of the business)" (Br. for Appellees at 41).¹³ Step one asks only whether the instrument commanded and who issued it. Governmental orders are public records, and a court takes judicial notice of them; the Library supplies, for each, the "necessary information" Rule 201 requires.

Step two. The function of the business it reached

The clause speaks of "the operation of the trade or business," and "partial" contemplates a part. The second step therefore names the function of the business the order reached. The Library records, for every instrument, the functions of a business it reached, in a fixed vocabulary of function codes: the customer-facing function (a dining room, a sales floor, a showroom, a waiting room, a classroom, a sanctuary), the back-of-house function (a kitchen, a stockroom, a production floor, a warehouse dock), the office and administrative function, the workforce (its availability under school, child-care, quarantine, transit and leave orders), the supply chain, the customer or patient base and its payers, hiring, screening and credentialing, and marketing, events and shows.¹⁴ An order that closed a dining room reached the dining function and not the takeout function; an order that postponed elective procedures reached the surgical function and not the emergency department; an order that confined a store to four customers per thousand square feet and closed its furniture, paint and garden departments reached the sales floor in two ways at once (Michigan Executive Order 2020-42 (Apr. 9, 2020), Ex. SEC-07-022).¹⁵

The statute does not ask whether the business was "essential." The word appears nowhere in any of the four enactments. It is the vocabulary of the orders themselves, which used it to identify the premises that could remain open on conditions, and of Q&A-11 of the Notice. In the orders an "essential" designation was the premise of conditions, never a release from them: Michigan's Executive Order 2020-42 held open stores over 50,000 square feet "to 4 people per 1,000 square feet of customer floor space," ordered them to "[c]lose areas of the store ... dedicated to ... Carpet or flooring ... Furniture ... Garden centers and plant nurseries ... Paint," and barred "the advertising or promotion of goods that are not groceries, medical supplies, or items that are necessary to maintain the safety, sanitation, and basic operation of residences" (Ex. SEC-07-022); the elective-procedure orders of more than thirty States terminated the surgical and procedural functions of the hospitals those States designated essential (Ex. TX-004; Ex. NJ-006).¹⁶

The statute does not ask whether the business stayed open. The Notice's own Q&A-17, Example 4, describes a hospital that stays open under an order that "prevents Employer H from performing elective and non-urgent medical procedures" and calls it partially suspended; Example 2 describes a restaurant that "resumed all categories of its business operations" under a spacing order and calls it partially suspended; and Q&A-19 states that an employer "that reduces its operating hours due to a governmental order is considered to have partially suspended its operations since the employer's operations have been limited by a governmental order" (Notice 2021-20, Q&A-17, at 930; Q&A-19, at 931). The United States told the District of Arizona that whether a business is essential "will often vary from jurisdiction to jurisdiction" and is determined "by looking to the governmental order affecting [the employer's] operations," and that an employer is partially suspended "if it was required to suspend certain operations for certain purposes" (Doc. 44 at 12, 15). Tri-State is a hospital's case: the most essential of businesses, open on every day of the period, held partially suspended on the protocols, cancellations and staffing rules a proclamation compelled.¹⁷ An employer ordered to run its business on the government's terms is not an employer the government left alone.

Step three. The change it compelled: the operative words

The third step quotes the operative words. A partial suspension is a delay, interruption or termination of a portion, and the instrument's own verbs say which it was: "shall close"; "shall operate at no more than 50 percent of the total listed occupancy"; "shall postpone"; "work in offices is prohibited whenever telework and work-at-home options are available" (Oregon Executive Order 20-12, Ex. OR-007); a 100 percent reduction of the in-person workforce (New York Executive Order 202.8, Ex. NY-002); telework "unless impossible" (Ex. PA-022); offices held to 10 percent of capacity in Colorado and professional services to 25 percent in Washington in the winter of 2020 (Ex. CO-081; Ex. WA-047); every federal building capped at 25 percent occupancy from January 2021 (Executive Order 13991, Ex. FED-060; OMB M-21-15 of January 24, 2021, Ex. FED-270).¹⁸ The Library records the operative clause of every instrument verbatim, and the enforcement provision beside it: the fine, the confinement, the license sanction or the participation condition the instrument or its statute recites. The Notice's own Q&A-18 lists the compelled changes that count: "limiting occupancy to provide for social distancing, requiring services to be performed only on an appointment basis (for businesses that previously offered walk-in service), changing the format of service (for example, restrictions on buffet or self-serve, but not prepackaged or carry-out), or requiring employees and customers to wear face coverings," each "required by a governmental order as a condition of reopening a physical space for business or service to the public" (Notice 2021-20, Q&A-18, at 930).¹⁹

The statute does not ask whether the business could have continued by telework. It contains no telework exception and no "comparable operations" test; the four factors of Q&A-16 first appeared in the Notice on March 1, 2021, after every 2020 quarter had closed, and nothing resembling them appeared in the Service's frequently-asked-questions page as posted on April 29, 2020 or as revised June 19, 2020.²⁰ A telework mandate is itself an order limiting commerce: it closed the employer's offices to its workforce and its customers, and an employer whose office function was terminated by order and whose workforce was dispersed to living rooms by order had a portion of its operations delayed, interrupted or terminated whatever the productivity of the living rooms. The Notice's own text agrees where it is read whole: Q&A-15 finds a partial suspension wherever "the closure of the workplace causes the employer to suspend business operations for certain purposes, but not others," and Q&A-16's third factor provides that where "the employer's physical work space is so critical to its trade or business operations that tasks central to the trade or business's operations are unable to be performed remotely, then this factor alone indicates that the employer is not able to continue comparable operations" (Notice 2021-20, Q&A-15, at 929; Q&A-16, at 929-30). Tri-State's definition contains no exception for portions that could be replaced by other means (Tri-State at 9).²¹ The Service's telework ground answers a question the statute does not ask, whether the employer coped, in place of the one it does, whether an order suspended a portion of the operation.

The statute does not ask whether the compelled change had a "nominal effect." The sentence in Q&A-18 that mask, glove and one-way-aisle mandates "will not result in more than a nominal effect on the business operations" first appeared on March 1, 2021; it is a factual conclusion about every business in the country, stated without record, in a document that "lacks the force of law." The United States itself told the District of Arizona that "employees having to wear face masks may impact business operations" and that "orders that were otherwise directed at business operations (operational hours, space, etc.) would also be considered" (Doc. 44 at 30).²² And the sentence speaks of masks and aisles. It does not speak of the orders that fixed the capacity of every premises (Ex. WA-065), Ohio's nightly stay-at-home hours of November 2020 (Ex. OH-039), New York City's indoor dining suspended a second time on December 14, 2020 (Ex. NY-039), the six-foot spacing rules that governed every New Jersey dining room and business until May 28, 2021 (rescinded by Executive Order No. 242, Ex. NJ-050), the fallow time between dental patients (Ex. SEC-03-017), the census-keyed suspension of elective procedures (Ex. SEC-01-050), the weekly testing of every nursing-home employee (Ex. SEC-04-004), the eleven rules imposed on every warehouse in New Jersey (Ex. SEC-11-020), the vaccination or weekly testing of every health-care worker in California and New York (Ex. CA-030; Ex. NY-071), the universal indoor masking of every California classroom for the 2021-22 school year (Ex. CA-034) or the proof of vaccination required of every patron of a restaurant, gym or theater in four cities (Ex. MET-NYC-017; Ex. MET-SFO-011; Ex. MET-MSY-029; Ex. MET-HNL-035). Tri-State held a partial suspension on protocols, screening, isolation rooms, removed chairs and reassigned staff (Tri-State at 13-15, 19-21).²³

The statute does not ask whether the change was "voluntary." Q&A-14 reaches, by its own terms, only a suspension "not due to a governmental order" (Notice 2021-20, Q&A-14, at 929), and the United States and the District of Arizona have defined the excluded employer as one "not being ordered to do so" (Doc. 49 at 18; Br. for Appellees at 42). No employer in any State answered that description on any day of the six quarters, because a statute that commands conduct is an order. Texas is the worked example. Section 81.002 of its Health and Safety Code provides that "[t]he state has a duty to protect the public health. Each person shall act responsibly to prevent and control communicable disease" (Ex. DUT-TX-001); section 411.103 of its Labor Code provides that "[e]ach employer shall" provide "a place of employment that is reasonably safe and healthful for employees" (Ex. DUT-TX-013); section 5(a)(1) of the Occupational Safety and Health Act commands every employer in the country to furnish a place of employment "free from recognized hazards that are causing or are likely to cause death or serious physical harm" (29 U.S.C. § 654(a)(1), Ex. DUT-FED-001); the Disaster Act made disobedience of the Governor's orders an offense (Ex. DUT-TX-012); and the Legislature fixed the standard of care for every pandemic exposure claim as compliance with "government-promulgated standards, guidance, or protocols intended to lower the likelihood of exposure to the disease" (Ex. DUT-TX-015).²⁴ The safe-workplace statutes had no COVID-19 content until the health authorities said what a safe workplace required; from that moment distancing, screening, capacity and face-covering measures were the law's requirement, taken because governmental directives defined the duty and not otherwise. That is the but-for test applied exactly as Tri-State applied it: the hospital's changes "were not voluntary," and "[s]ick patients and employees alone did not require additional protocols" (Tri-State at 20-21). A measure required by an order enforced by fine, license revocation, exclusion from Medicare or prosecution is not a voluntary measure.

Step four. The quarter: in force on which days

The fourth step fixes the days. The credit runs by calendar quarter, and the Library records for every instrument the quarters in which it was in force, tested against its dates: an instrument is in force in a quarter if its effective date fell on or before the quarter's last day and its end date, if any, fell on or after the quarter's first day. The six quarters are the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021. The CARES Act applies to wages paid after March 12, 2020, so the orders of March 13 through March 31, 2020, the first stay-at-home and closure orders in the country, belong to the record of the second quarter of 2020, and the Service's own Form 941-X instructions direct that the credit for those wages is claimed on the second-quarter return (Ex. LAW-001, § 2301(m)).²⁵

"During the calendar quarter" modifies "suspended," not "orders." The subject of the clause is "the operation of the trade or business"; the predicate is "is fully or partially suspended during the calendar quarter"; the cause is "due to orders." Congress knew how to write a temporal condition when it wished to: it wrote one on the wages ("wages paid after March 12, 2020, and before January 1, 2021") and one on the gross-receipts comparison ("the same calendar quarter in the prior year"), and it wrote none on the order (Ex. LAW-001). Reading "in effect during the quarter" into "due to orders" asks a court "to add words to the law to produce what is thought to be a desirable result. That is Congress's province" (Abercrombie, 575 U.S. at 774, Ex. LAW-013; Russello, 464 U.S. at 23, Ex. LAW-014). The Service reads the phrase the same way when it suits the taxpayer: Q&A-22 provides that "[a]n employer with business operations that are fully or partially suspended due to a governmental order during a portion of a calendar quarter is an eligible employer for the entire calendar quarter," and Q&A-16's fourth factor recognizes that "some adjustment period is expected" after an order operates (Notice 2021-20, Q&A-22, at 932; Q&A-16, at 930).²⁶ Because a "suspension" includes a "delay" and "due to" is but-for, the delay in restoring a function that an order compelled an employer to dismantle is a suspension due to that order for as long as the delay lasts; this site's page on continuing suspension states that analysis in full, from the orders' own phase steps and sunset dates. The Service's contrary advice, AM 2023-005 (Office of Chief Counsel, June 30, 2023), frames the question as whether a lifted order "constitute[s] a governmental order in subsequent calendar quarters"; that is the wrong question, because the statute asks whether the operation was suspended during the quarter due to orders, and the document says of itself that it "may not be used or cited as precedent" (AM 2023-005, at 1, 7).²⁷

The fourth step never rests on that analysis alone, because orders were in force in every one of the six quarters. The last statewide capacity caps ended on June 30, 2021 in Washington and Oregon and on July 1, 2021 in New Mexico (Ex. WA-065; Ex. OR-043; New Mexico Public Health Emergency Order of June 30, 2021), and on every day of the third quarter of 2021 the federal conveyance order and the Transportation Security Administration's directives (Ex. FED-020; Ex. FED-051), the entry proclamations (Ex. FED-207) and the monthly land-border prohibitions, the OSHA Healthcare Emergency Temporary Standard (Ex. FED-080), Executive Order 14042 and the Safer Federal Workforce Task Force rules (Ex. FED-063; Ex. FED-272), the statewide indoor masking and exposure-control orders of Louisiana, Nevada, Oregon, Washington, Illinois, New Mexico, Hawaii and the District of Columbia (Louisiana Proclamation 137 JBE 2021 of August 2, 2021; Ex. NV-041; Ex. OR-048; Ex. WA-078; Ex. DC-057; Illinois Executive Order 2021-20 of August 26, 2021; New Mexico Public Health Order of August 17, 2021; Hawaii Emergency Proclamation of August 5, 2021), the health-care-worker vaccination orders of sixteen States and the District (Ex. CA-030; Ex. NY-071), the school masking and exposure-control orders of eighteen States (Ex. CA-034) and the vaccination-proof orders of four cities (Ex. MET-NYC-017) were in force. The page on the third quarter of 2021 lists them instrument by instrument.²⁸ Congress re-enacted the identical clause on March 11, 2021 for that quarter, knowing the state of the orders, and left it in place when it terminated the credit for the fourth quarter on November 15, 2021 (Ex. LAW-003; Ex. LAW-004). A reading under which no order could qualify anyone after June 2021 reads the March 2021 re-enactment out of the statute.

Step five. The statute's answer

The fifth step puts the four findings into the clause. An order from an appropriate governmental authority (step one) reached a function of the business (step two) and compelled a change in how that function operated (step three) on days within the quarter (step four). The function is a portion of the operation; the compelled change is a delay, interruption or termination of that portion; and but for the order no law required the change. On the definitions the United States agreed to in Tri-State, the operation of the trade or business was partially suspended during the calendar quarter due to that order. That is the statute's answer, and it is the only question the statute asks.

The fifth step also records what the statute does not ask, because the Service's letters ask it. The statute does not ask whether the business was essential or stayed open (step two). It does not ask whether the business could telework, whether the compelled change was more than "nominal," or whether the change was "voluntary" (step three). Two further questions remain, and the statute does not ask either of them.

The statute does not ask whose customers were under orders. It asks whether the operation was partially suspended "due to" orders limiting commerce, travel or group meetings, and a stay-at-home order on the customer base is such an order in the plainest sense: it forbade the public to travel except for enumerated purposes and forbade every business but the listed ones to receive them, and the commerce it limited was the employer's. The Notice's own Q&A-10 lists the shelter-in-place proclamation as a governmental order; Q&A-12 treats an order on a supplier, a third party, as a ground of suspension; and Q&A-13's customer exclusion, which cannot be reconciled with either, first appeared on March 1, 2021 (Notice 2021-20, Q&A-10, at 927-28; Q&A-12, at 928-29; Q&A-13, at 929). The United States has told the Ninth Circuit that "a business may be suspended 'due to' a government order addressing a third party" and that the supplier rule "never even mentions a 'physical[ ] clos[ure]' order against the supplier" (Br. for Appellees at 41 & n.5).²⁹ A customer who is forbidden to come is not a customer who chose not to come, and an order that emptied the premises by forbidding the public to enter them suspended the operation as surely as an order that locked the door.

The statute does not ask for a percentage. It contains no "nominal" qualifier and no number; Congress placed its only percentage threshold in the gross-receipts prong. The Service's frequently-asked-questions page as posted on April 29, 2020 contained no "nominal" test and no percentage; the phrase "more than a nominal portion" first appeared on June 19, 2020; and the two ten percent deeming rules first appeared in Q&A-11 and Q&A-18 of the Notice on March 1, 2021, after every 2020 quarter had closed.³⁰ The Service's public page now tells every taxpayer that "[t]he IRS considers 'more than nominal' to be at least 10% of your business" (Ex. GOV-003, at 7), and Chief Counsel's AM 2023-007 tells examiners that an employer "needs to substantiate ... a reduction ... of not less than 10 percent to fall within the provisions of Notice 2021-20" (Ex. GOV-004, at 12). In the same period the United States told two federal courts the opposite. In the District of Arizona: "The 10 percent is not determinative ... Effectively, this is a safe harbor ... Properly understood, it isn't an eligibility requirement"; the figure "exists only as a safe harbor"; "the IRS did not say that a taxpayer cannot qualify for the ERC if they have been impacted less than 10 percent" (Doc. 44 at 14, 28, 30). The court agreed: "the ten percent standard is not an exclusionary cut-off point, but rather a safe harbor above which the IRS will consider there to have been a more-than-nominal disruption to business" (Doc. 49 at 26). In the Ninth Circuit: the provision states "sufficient—though not necessary—conditions," is "a quintessential safe harbor" and "a safe harbor rather than a hard floor," and reading it as a floor "erroneously swaps an 'if' with an 'only if'" (Br. for Appellees at 37-38, 49). In Tri-State: the Notice "provides a method for the test to be met not as a requirement to meet the test" (Tri-State at 15-16).³¹ The Service administers as the definition of "more than nominal" a number the United States has twice described in court as a safe harbor and "not an eligibility requirement." The two positions cannot both be true, and the United States chose the second in two federal courts.

What the Service's sentence asserts and what the record shows

There were no government orders related to COVID-19 in effect during the quarter which could have fully or partially suspended your trade or business.

Letter 105C, form language on the suspension prong, letters issued since 2024

The sentence is a statement of fact about the public record of the United States, and it is measured against that record. Between March 12 and April 6, 2020 every State and the District of Columbia issued an order limiting commerce, travel or group meetings due to COVID-19, and by April 7, 2020 forty-two States and territories had ordered their residents to stay at home (Ex. LAW-201). On July 1, 2020 capacity, exposure-control, gathering and quarantine orders were in force in every State. On January 1, 2021 winter closure or capacity orders were in force in more than thirty jurisdictions, and capacity orders remained in twenty-five on March 31, 2021. The last statewide caps ended on June 30 and July 1, 2021 (Ex. WA-065; Ex. OR-043), and the federal, State, metropolitan and sector instruments listed under step four were in force on every day of the third quarter of 2021.³² For each of the six quarters the sentence asserts that none of those instruments existed. It is factually incorrect, and for the six quarters it describes a period that did not occur. A letter that reports the absence of instruments the Federal Register, the State registers and the county codes record by number, date and page is not a finding about the taxpayer; it is a misstatement about the public record, and the record corrects it.

The standard of proof

In a refund suit the taxpayer proves the overpayment by a preponderance of the evidence, the lowest standard the law knows. The Commissioner's determination "has the support of a presumption of correctness, and the petitioner has the burden of proving it to be wrong" (Welch v. Helvering, 290 U.S. 111, 115 (1933), Ex. LAW-021); the taxpayer carries that burden "by a preponderance of the evidence" (Delaney v. Commissioner, 743 F.2d 670, 671 (9th Cir. 1984), Ex. LAW-070); and "a shift in the burden of preponderance has real significance only in the rare event of an evidentiary tie" (Knudsen v. Commissioner, 131 T.C. 185, 188 (2008), Ex. LAW-071). There is no evidentiary tie between an order published by the authority that issued it and a sentence that says it did not exist. The court decides the overpayment on the evidence before it and not on the Service's administrative reasoning: the refund forum redetermines "the entire tax liability" (Lewis v. Reynolds, 284 U.S. 281, 283 (1932), Ex. LAW-020; United States v. Janis, 428 U.S. 433, 440 (1976), Ex. LAW-042), and the United States describes it the same way, as "de novo judicial review of the merits" in which "the statute will control whether a refund is warranted" (Doc. 44 at 22, 24).³³

Governmental orders are public records, and a court takes judicial notice of them. A court "may judicially notice a fact that is not subject to reasonable dispute because it ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned," "must take judicial notice if a party requests it and the court is supplied with the necessary information," and does so "at any stage of the proceeding" (Fed. R. Evid. 201(b), (c)(2), (d), Ex. LAW-024). The Ninth Circuit notices government documents "publicly available on the Washington government website" where "neither party disputes the authenticity of the website nor the accuracy of the information" (Kater v. Churchill Downs Inc., 886 F.3d 784, 788 n.3 (9th Cir. 2018), Ex. LAW-023); the Third Circuit wrote of a State's COVID-19 executive orders that "[a]lthough not every executive order discussed herein was entered into the record below, we may take judicial notice of their content" (Clark v. Governor of New Jersey, 53 F.4th 769 (3d Cir. 2022), slip op. at 8 n.5, Ex. LAW-032); and the Court of Federal Claims treated California's executive and county orders as governmental orders on the pleadings (I Health, Inc. v. United States, No. 25-1315T (Fed. Cl.), at 2-3, 9, Ex. LAW-025). Every instrument in the Library is an order, regulation, statute or court order published by the issuing authority, retrieved with its source recorded; the Library supplies "the necessary information."³⁴

The United States' own statements are admissions. What the United States wrote in Doc. 44 and in the Br. for Appellees, said at the hearing in the District of Arizona and argued in Tri-State are statements of a party-opponent under Rule 801(d)(2), admissible against it in any refund suit; judicial estoppel is available against it where, as in the District of Arizona, a court accepted the position; and the Service is bound by its own directive to the Notice's published text "to the same extent as a revenue ruling."³⁵ The definitions of "partial suspension" and "due to" that this page applies are the definitions the United States agreed to in Tri-State; the account of the Notice as non-binding guidance and of the ten percent figure as a safe harbor is the United States' own; and the statute the United States says "will control" is the statute quoted at the top of this page. This site's page on the Government's own words collects every such statement with its pin, and the page on the standards sets out the penalty and burden rules in full.

1. CARES Act § 2301(c)(2)(A)(ii)(I), (m), Pub. L. 116-136, 134 Stat. 281, 347-48, 351 (Ex. LAW-001); Taxpayer Certainty and Disaster Tax Relief Act of 2020, Pub. L. 116-260, div. EE, §§ 206(e), 207(a)(1), (b), 134 Stat. 1182, 3061-62 (Ex. LAW-002); American Rescue Plan Act of 2021, Pub. L. 117-2, § 9651, 135 Stat. 4, 176-77, 182 (I.R.C. § 3134(c)(2)(A)(ii)(I), (n)) (Ex. LAW-003); Infrastructure Investment and Jobs Act, Pub. L. 117-58, § 80604, 135 Stat. 429, 1341 (Ex. LAW-004). ↩
2. Doc. 44 at 19, 31 & n.8; Doc. 49 at 27; Br. for Appellees at 26, 58. The Court of Federal Claims records the same position: "The government has not argued that IRS Notice 2021-20 sets out binding interpretations of the governing statute." Sundancer Pools, Inc. v. United States, No. 25-1291T, at 2 (Fed. Cl. June 23, 2026). ↩
3. Tri-State at 8-11. The court gave the Notice the consideration described in Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), after Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 394, 412 (2024) (Tri-State at 6-7, 9-10). ↩
4. Tri-State at 15-16 (citing Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992)); Notice 2021-20, 2021-11 I.R.B. 922, Q&A-11, at 928; Q&A-18, at 931 (the two deeming rules). ↩
5. Tri-State at 12-13. ↩
6. Russello v. United States, 464 U.S. 16, 23 (1983) (Ex. LAW-014); CARES Act § 2301(c)(2)(A)(ii)(II), 134 Stat. at 348 (Ex. LAW-001); Lamie v. United States Trustee, 540 U.S. 526, 534 (2004) (Ex. LAW-011) ("when the statute's language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms"), applied in Tri-State at 9. ↩
7. Tri-State at 4-5 (Washington Proclamation 20-24.2 imposed "over 30 separate requirements"), 13-15 (the pleaded cancellations, conversions, isolation rooms, reduced beds, limited imaging access and staff quarantines). The instruments in the list are held in the Library under the industry, State and metro collections; the industry pages apply the definition function by function. ↩
8. Tri-State at 17; Burrage v. United States, 571 U.S. 204, 210-13 (2014) (Ex. LAW-015) (the Court "decline[d] to adopt the Government's permissive interpretation," id. at 205 (syllabus)); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (Ex. LAW-016); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 346-47, 350, 360 (2013) (Ex. LAW-017); Bostock v. Clayton County, 590 U.S. 644, 656 (2020) (Ex. LAW-012). The Ninth Circuit applies the rule to "because" in the Mine Act on the authority of all four: Thomas v. CalPortland Co., 993 F.3d 1204, 1208-09 (9th Cir. 2021). ↩
9. Tri-State at 18-20 (citing Burrage, 571 U.S. at 216; Gross, 557 U.S. at 176; Thomas, 993 F.3d at 1209; EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 774 (2015) (Ex. LAW-013)). ↩
10. Tri-State at 19-21; Bostock, 590 U.S. at 656 (Ex. LAW-012). Several trial courts have read a proximate-cause requirement into "due to"; the answer is the statute's. "Proximate" is not in the clause; both parties in Tri-State agreed that "due to" means "because of"; and the Supreme Court has held four times that "because of" is but-for causation. Burrage refused the Government's request to loosen a causation phrase for policy reasons, and Bostock accepted that but-for causation "can be a sweeping standard" with "multiple but-for causes"; breadth is the consequence of the words Congress chose. ↩
11. Order, American Heritage Dictionary of the English Language (5th ed.), senses 6 and 10; Order, Merriam-Webster.com (capture of March 2020). Undefined terms take their ordinary public meaning at the time of enactment: Bostock, 590 U.S. at 654 (Ex. LAW-012). ↩
12. Notice 2021-20, 2021-11 I.R.B. 922, Q&A-10, at 927-28 ("Whether orders, proclamations or decrees are governmental orders is determined without regard to the level of enforcement of the governmental order."; the list of governmental orders); Doc. 49 at 13-14. ↩
13. Br. for Appellees at 41 & n.5; Doc. 44 at 13 n.3, 15 (the supplier rule of Q&A-12 as the United States describes it); Notice 2021-20, Q&A-12, at 928-29. On the authorities the clause reaches (governors, health officers, boards of health, mayors, county judges, courts, licensing boards, tribal and territorial governments, federal agencies), see this site's page on the statute, element two. ↩
14. The Library's function codes are listed on each industry page and in the record of every instrument ("functions of a business it reached"). The reserved codes keep their meaning everywhere: HR (hiring, screening, training, credentialing); OP or OF (office, administration, telework); MK (marketing, events, shows); WF (workforce availability: schools, child care, quarantine, transit, leave mandates, vaccination status); SC (supply chain); CB (the customer, patient and member base and its payers). Each industry adds its own: DR (dining room), BA (bar), TO (takeout) and BQ (banquets) for restaurants; SF (sales floor) and CU (curbside) for retail; SX (surgery and elective procedures) and ED (emergency department) for hospitals. ↩
15. Michigan Executive Order 2020-42 (Apr. 9, 2020) (Ex. SEC-07-022); Texas Executive Order GA-09 (Mar. 22, 2020) (Ex. TX-004). ↩
16. Ex. SEC-07-022; Ex. TX-004; Ex. NJ-006; Notice 2021-20, Q&A-11, at 928 (excluding only an employer whose order "allows all of the employer's operations to remain open," and treating a compelled closure "for a period of time during normal working hours" as a partial suspension). The word "essential" appears in none of the four enactments cited in note 1. ↩
17. Notice 2021-20, Q&A-17, Examples 2 and 4, at 930; Q&A-19, at 931; Doc. 44 at 12 (the filed text reads "affecting is operations"; bracket supplied), 15; Doc. 49 at 13-14, 17; Tri-State at 4-5, 13-15, 19-21. ↩
18. Texas Executive Order GA-28 (June 26, 2020) ("Every business establishment in Texas shall operate at no more than 50 percent of the total listed occupancy"); Ex. OR-007; Ex. NY-002; Ex. PA-022; Ex. CO-081; Ex. WA-047; Ex. FED-060; Ex. FED-270. ↩
19. Notice 2021-20, Q&A-18, at 930 (the list of modifications and the "condition of reopening" sentence; the "nominal effect," second deeming rule and masks-and-aisles sentences follow at 931). ↩
20. Notice 2021-20, Q&A-16, at 929-30; the Service's frequently-asked-questions page as posted April 29, 2020 (captures of May 6 and May 18, 2020, each showing "Page Last Reviewed or Updated: 29-Apr-2020") and as revised June 19, 2020 (capture of January 15, 2021, FAQs 30, 33, 34 and 35 marked "(updated June 19, 2020)"); IRS, IR-2021-48 (Mar. 1, 2021) (the Notice described as "similar to the information in the employee retention credit FAQs, but includes clarifications"). This site's page on the Notice itemizes the six changes of March 1, 2021. ↩
21. Notice 2021-20, Q&A-15, at 929 (second paragraph and Examples 2 and 3); Q&A-16(3), at 929-30; Doc. 44 at 15 ("an employer could be considered to have a partial suspension due to the governmental order if it was required to suspend certain operations for certain purposes"); Tri-State at 9. ↩
22. Notice 2021-20, Q&A-18, at 931; Doc. 44 at 19, 30. ↩
23. Ex. WA-065; Ex. OH-039; Ex. NY-039; Ex. NJ-050; Ex. SEC-03-017; Ex. SEC-01-050; Ex. SEC-04-004; Ex. SEC-11-020; Ex. CA-030; Ex. NY-071; Ex. CA-034; Ex. MET-NYC-017; Ex. MET-SFO-011; Ex. MET-MSY-029; Ex. MET-HNL-035; Texas Executive Order GA-28 (June 26, 2020); New York Executive Order 202.108 (May 17, 2021); Tri-State at 13-15, 19-21; Notice 2021-20, Q&A-17, Example 2, at 930. ↩
24. Notice 2021-20, Q&A-14, at 929; Doc. 49 at 18; Br. for Appellees at 42; Tex. Health & Safety Code § 81.002 (Ex. DUT-TX-001); Tex. Lab. Code § 411.103 (Ex. DUT-TX-013); 29 U.S.C. § 654(a)(1) (Ex. DUT-FED-001); Tex. Gov't Code § 418.173 (Ex. DUT-TX-012); Tex. Civ. Prac. & Rem. Code § 148.003 (Ex. DUT-TX-015); Texas Executive Orders GA-18, GA-28, GA-29 and GA-32 (the "shall operate at no more than," "shall wear a face covering" and "must be followed" clauses). Every one of the fifty-one jurisdictions had a communicable-disease control statute with a penalty, an offense reaching violation of the pandemic orders and a workplace-safety duty binding every private employer; this site's page on the standing duties sets them out State by State. Where an instrument's own verb was "should," the Library records it as a recommendation and names the instrument that made it compulsory. ↩
25. CARES Act § 2301(m), 134 Stat. at 351 (Ex. LAW-001); Instructions for Form 941-X (Rev. July 2021) ("The employee retention credit for wages paid March 13, 2020, through March 31, 2020, is claimed on Form 941 for the second quarter of 2020; therefore, any corrections ... should be reported on Form 941-X filed for the second quarter of 2020"). ↩
26. CARES Act § 2301(c)(2)(A)(ii)(I)-(II), (B), (m), 134 Stat. at 348, 351 (Ex. LAW-001); Abercrombie, 575 U.S. at 774 (Ex. LAW-013); Russello, 464 U.S. at 23 (Ex. LAW-014); Notice 2021-20, Q&A-22 and Example, at 932 (an order from March 10 through April 30, 2020 makes the employer eligible "in the first quarter and second quarter of 2020"); Q&A-16(4), at 930 (a "significant delay ... in moving operations to comparable telework" is itself "a partial suspension during that transition period"); Q&A-17, Example 2, at 930 (an employer that "resumed all categories of its business operations" remains partially suspended while a spacing order is in force). ↩
27. Office of Chief Counsel, IRS, AM 2023-005, at 1, 7 (June 30, 2023); Tri-State at 8-9 (delay), 17-19 (but-for), 11-12 (advice of that kind "may not be used or cited as precedent" and its scenarios "are not comparable or persuasive"). The analysis never says that an expired order suspended anyone by its own force; it says that the suspension the order caused continued because of it, states the restoration period from the orders' own phase steps and sunset dates, and lists the orders that were in force. ↩
28. Ex. WA-065; Ex. OR-043; Ex. FED-020; Ex. FED-051; Ex. FED-207; Ex. FED-080; Ex. FED-063; Ex. FED-272; Ex. NV-041; Ex. OR-048; Ex. WA-078; Ex. DC-057; Ex. CA-030; Ex. NY-071; Ex. CA-034; Ex. MET-NYC-017; California State Public Health Officer Order of June 11, 2021 (effective June 15, 2021); New Mexico Public Health Emergency Orders of June 30 and August 17, 2021; Illinois Executive Order 2021-20 (Aug. 26, 2021); Hawaii Emergency Proclamation of August 5, 2021; Louisiana Proclamation 137 JBE 2021 (Aug. 2, 2021). The third-quarter instruments not carried under an exhibit number are named by issuer, instrument and date. ↩
29. Notice 2021-20, Q&A-10, at 927-28; Q&A-12, at 928-29; Q&A-13, at 929 (whose own example begins "Due to a governmental order that limits travel and requires members of the community to stay at home"); Br. for Appellees at 41 & n.5; Doc. 44 at 13 n.3, 15, 19. The Service's page as posted April 29, 2020 listed the shelter-in-place proclamation and the curfew as qualifying orders and confined the customer point to a business the orders allowed to keep its physical locations open and that claimed a suspension "for the sole reason" of its customers' order; the exclusion in its present form first appeared on March 1, 2021. ↩
30. The Service's frequently-asked-questions page as posted April 29, 2020 (captures of May 6 and May 18, 2020) and as revised June 19, 2020 (capture of January 15, 2021, FAQ 30 adding "more than a nominal portion"); Notice 2021-20, Q&A-11, at 928; Q&A-18, at 931; CARES Act § 2301(c)(2)(A)(ii)(II), 134 Stat. at 348 (Ex. LAW-001). ↩
31. Ex. GOV-003, at 7 (IRS, "Frequently asked questions about the Employee Retention Credit," Q5/A5, added Sept. 14, 2023); Ex. GOV-004, at 12 (Office of Chief Counsel, IRS, AM 2023-007 (Oct. 18, 2023)); Doc. 44 at 14, 28, 30 & n.7; Doc. 49 at 15-17, 26; Br. for Appellees at 37-38, 49 & n.9; Tri-State at 15-16. The United States' own authority for the concept: a safe harbor is "nothing more than a safe harbor, a nonexclusive objective test for employers to use in determining whether they could be certain of qualifying," as distinct from "the exclusive means" of qualifying. Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158, 172 (1989), cited in Br. for Appellees at 37, 45. ↩
32. Ex. LAW-201 (Moreland et al., 69 MMWR 1198: forty-two States and territories issued mandatory stay-at-home orders between March 1 and May 31, 2020, the last issued April 7, 2020); Ex. WA-065; Ex. OR-043; the instruments cited in note 28. The six quarter pages and the page on the nation under orders inventory the instruments quarter by quarter. ↩
33. Welch v. Helvering, 290 U.S. 111, 115 (1933) (Ex. LAW-021); Delaney v. Commissioner, 743 F.2d 670, 671 (9th Cir. 1984) (Ex. LAW-070); Knudsen v. Commissioner, 131 T.C. 185, 188 (2008) (Ex. LAW-071); Lewis v. Reynolds, 284 U.S. 281, 283 (1932) (Ex. LAW-020); United States v. Janis, 428 U.S. 433, 440 (1976) (Ex. LAW-042) ("In a refund suit the taxpayer bears the burden of proving the amount he is entitled to recover."); Doc. 44 at 22-24 ("de novo judicial review of the merits"; "Whether Notice 2021-20 exists or not, the statute will control whether a refund is warranted."). Fraud is the Government's burden "in any proceeding," 26 U.S.C. § 7454(a) (Ex. LAW-038), carried by clear and convincing evidence, Tax Ct. R. 142(b); preponderance is the only standard for a refundable credit. ↩
34. Fed. R. Evid. 201(b), (c)(2), (d) (Ex. LAW-024); Kater v. Churchill Downs Inc., 886 F.3d 784, 788 n.3 (9th Cir. 2018) (Ex. LAW-023) (citing Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998-99 (9th Cir. 2010)); Clark v. Governor of New Jersey, 53 F.4th 769 (3d Cir. 2022), slip op. at 8 n.5 (Ex. LAW-032); I Health, Inc. v. United States, No. 25-1315T (Fed. Cl.), at 2-3, 9 (Ex. LAW-025); see also South Bay United Pentecostal Church v. Newsom, 985 F.3d 1128 (9th Cir. 2021), slip op. at 7 n.1, injunction granted in part, 141 S. Ct. 716 (2021); Brach v. Newsom, 6 F.4th 904 (9th Cir. 2021), slip op. at 15-16 n.5, vacated on reh'g en banc, 38 F.4th 6 (9th Cir. 2022) (each noticing California's State and county COVID-19 orders). This site's methodology page describes how each instrument was retrieved, hashed, indexed and re-checked. ↩
35. Fed. R. Evid. 801(d)(2)(A)-(D) (Ex. LAW-024); United States v. Kattar, 840 F.2d 118, 127-28, 130-31 (1st Cir. 1988); United States v. Van Griffin, 874 F.2d 634, 638 (9th Cir. 1989); New Hampshire v. Maine, 532 U.S. 742, 749-51 (2001); Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782-83 (9th Cir. 2001); IRM (CCDM) 32.2.2.10(3)-(4) (the Service's own directive that its published notices bind it "to the same extent as a revenue ruling"); Doc. 44 at 19, 31 & n.8; Doc. 49 at 15-17, 26-27; Br. for Appellees at 26, 37-38, 41, 49, 58; Tri-State at 8-9, 15-17. ↩