Skip to content
The COVID Project

Industry 15 of 27 · Findings

Education and Child Care

The conclusions for each of the six quarters and the standard of proof they meet.

INin-person instructionRLremote learningECextended care and child careTRtransportFSfood serviceACathletics, activities and eventsADadmissions, tours and enrollmentCPcampus housing and diningHRhiring, screening, training…OPoffice, administration, teleworkWFworkforce availabilityCBfamilies
Build the report for this industrySearch the Library for this industry

Findings

On the statute's words, on Tri-State's definitions, on the United States' own representations and on the orders in the Library, employers in education and child care in the United States had the operation of their trade or business partially suspended during each of the six calendar quarters from the second quarter of 2020 through the third quarter of 2021 due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19. The Service's contrary account of the period is not a contest of weight; it is a description of a period that did not occur, and of a school year that did not open.

The findings by quarter

The second quarter of 2020

During the calendar quarter beginning April 1, 2020 and ending June 30, 2020, the operation of the trade or business of employers in education and child care was partially suspended due to the orders of every State and the District of Columbia closing every school building to students, the orders of at least twelve States and the District closing child care to all but the children of essential workers and the ratio orders everywhere else, the orders ceasing in-person higher education, the stay-at-home orders of forty-two States and territories, the suspension of every season, ceremony and camp, and the federal paid-leave, entry and student-visa instruments, each an order from an appropriate governmental authority limiting commerce, travel or group meetings due to COVID-19.

The third quarter of 2020

During the calendar quarter beginning July 1, 2020 and ending September 30, 2020, that operation was partially suspended due to the reopening orders that fixed the earliest date and the mandatory conditions of in-person instruction and child care in every State, the orders barring on-campus instruction statewide in Arizona before August 17, 2020 and in the largest counties of California, Texas, Indiana and Wisconsin, the school and child care face-covering orders of at least fifteen States, imposed with screening and distancing rules as infection-prevention and exposure-control requirements, the camp, sports and higher-education conditions, and the federal leave, student-visa and entry instruments.

The fourth quarter of 2020

During the calendar quarter beginning October 1, 2020 and ending December 31, 2020, that operation was partially suspended due to the 2020-21 operating orders of every State, the winter orders that closed classrooms by name in Kentucky, Michigan, New Mexico, West Virginia, Marion County, New York City, Montgomery County (Pennsylvania) and Philadelphia and paused sports in Minnesota, West Virginia, Michigan and Pennsylvania, the child care conditions, and the federal leave, Head Start, student-visa and entry instruments.

The first quarter of 2021

During the calendar quarter beginning January 1, 2021 and ending March 31, 2021, that operation was partially suspended due to the winter closure orders through their expiry, the ordered returns to in-person instruction on State-set dates in Iowa, West Virginia, New Hampshire, Arizona, North Carolina, Oregon, Washington, Kentucky, Massachusetts and Nevada, the school and child care mask, distancing, cohort and quarantine orders of every reopened State, the metro orders, and the federal conveyance order on every school bus from February 1, 2021 with the federal workplace, entry and student-visa orders.

The second quarter of 2021

During the calendar quarter beginning April 1, 2021 and ending June 30, 2021, that operation was partially suspended due to the 2020-21 school and child care orders in force to their stepped expiry between April 9 and July 30, 2021, the return statutes of Kansas, South Carolina and New Hampshire, the first statutes and orders forbidding schools to require face coverings in force in Iowa, Utah and Texas, with Arkansas's, Oklahoma's and South Carolina's enacted in the quarter for effect on July 1 and July 28, 2021, California's order of June 15, 2021 making its K-12 guidance binding, and the federal conveyance, workplace, entry and student-visa orders.

The third quarter of 2021

During the calendar quarter beginning July 1, 2021 and ending September 30, 2021, that operation was partially suspended due to the federal conveyance, entry, border, student-visa, workplace and contractor orders, the school and child care face-covering and exposure-control orders of at least eighteen States and the District of Columbia, the staff vaccination-or-testing orders of California, Washington, Oregon, New Mexico, Connecticut, New Jersey, Illinois, New York, New York City and the District, the face-covering-mandate prohibitions of Texas, Florida, Tennessee, Arkansas, Iowa, Oklahoma, South Carolina and Utah with the injunctions, stays and judgments that decided them inside the quarter, the county and district orders of every large metro, the quarantine and isolation standing orders, the child care licensing, Head Start and stabilization conditions, and the health care worker orders on the industry's counterparties, in force on every day of the quarter or issued within it.

In each quarter

In each quarter the orders caused a temporary delay, interruption or termination of a more than nominal portion of the industry's operations; in each quarter the suspension existed "during the calendar quarter"; and in each quarter, but for the orders, no law required the change.194

The standards satisfied

Each finding is established by a preponderance of the evidence, on public records subject to judicial notice, in a de novo proceeding.195 Each conclusion on this page has substantial authority: the statutory text, four enactments of Congress, the Supreme Court's canons of construction and causation, Tri-State's holdings on the United States' agreed definitions, the District Court's holdings in Stenson Tamaddon, LLC v. IRS, the United States' representations to two federal courts, and the instruments themselves.196 A taxpayer who assembled the orders that governed its industry and applied the statute's words to them acted with reasonable cause and in good faith under section 6664(c); the erroneous-claim penalty of section 6676 does not reach such a claim; and a position that applies the words Congress wrote to the Federal Register and the fifty State registers is not frivolous under section 6702 or Notice 2010-33.197 Fraud is the Government's burden by clear and convincing evidence, and nothing in a claim founded on the public record supports it.198 Claims founded on these instruments were correct when made and are correct now.

The records

Every instrument named on this page is in the Library, organized by layer (the federal layer, the States, the metros, the agencies, the interconnected economy, this sector and the legal authorities) and carrying its issuer, instrument, dates, in-force quarters, limitation types, grade, source and, where retrieved, the exhibit file itself. Only instruments whose text was read from the issuing authority or confirmed from an identifiable secondary source are named here; the record establishes each finding on those instruments alone, and the tables on this page rest only on cells that a State, metro, federal or sector exhibit confirms. Where a State's instrument is described by category rather than cited by exhibit, the description rests on a verified chronology that names it, and no finding rests on the description alone.

  1. Tri-State at 9, 19; I.R.C. § 3134(c)(2)(A)(ii)(I) (Ex. LAW-006); CARES Act § 2301(c)(2)(A)(ii)(I), 134 Stat. at 347-48 (Ex. LAW-001). ↩
  2. Lewis v. Reynolds, 284 U.S. 281, 283 (1932) (Ex. LAW-020); Welch v. Helvering, 290 U.S. 111, 115 (1933) (Ex. LAW-021); Knudsen v. Commissioner, 131 T.C. 185, 188 (2008) (Ex. LAW-071); Fed. R. Evid. 201(b) (Ex. LAW-024); Kater v. Churchill Downs Inc., 886 F.3d 784, 788 n.3 (9th Cir. 2018) (Ex. LAW-023); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998-99 (9th Cir. 2010) (Ex. LAW-073). ↩
  3. Treas. Reg. § 1.6662-4(d)(3) (Ex. LAW-036); Treas. Reg. § 1.6662-3(b)(3) (Ex. LAW-035); the statute and Government's own words pages. ↩
  4. I.R.C. § 6664(c) (Ex. LAW-039); I.R.C. § 6676 (Ex. LAW-040); Pub. L. 119-21, § 70605(f), 139 Stat. at 288 (Ex. LAW-005); I.R.C. § 6702 (Ex. LAW-041); Notice 2010-33, 2010-17 I.R.B. 609 (Ex. LAW-026). ↩
  5. I.R.C. § 7454(a) (Ex. LAW-038). ↩