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 weddings, events and production services 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.
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 this industry was partially suspended due to the stay-at-home and gathering-prohibition orders of forty-two jurisdictions (Ex. LAW-201) and the gathering caps of the rest, the closure by name of every banquet hall, concert hall, performing-arts center, nightclub and theater in forty-seven States, the closure of film and television production in every stay-at-home State and its reopening only under county and State protocols, the reopening orders' caps of ten to fifty guests, twenty-five percent of a room and 300 under banquet rules, the fair cancellations ordered in Illinois and Vermont, the tribal and gaming closures, the courthouse-wedding suspension and the federal leave, entry, border and visa instruments (the convention authorities' and fair boards' own records of the closures and cancellations those orders compelled being cited as context), each an order from an appropriate governmental authority limiting commerce, travel or group meetings due to COVID-19.253
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 gathering caps of ten to fifty in thirty-four jurisdictions and percentage caps elsewhere, the caps that named weddings or receptions in New Jersey, Ohio and Indiana (Ex. NJ-031; Ex. NJ-034; Ex. OH-025; Ex. IN-034) and the general event caps enforced against weddings in New York (the fifty-person cap of EO 202.45, Ex. NY-031, recorded in DiMartile, Ex. SEC-25-012), Pennsylvania (indoor events over twenty-five, Ex. PA-016) and Arizona (organized public events over fifty by local approval, Ex. AZ-022), the prohibition of conventions in Maryland and of live events in Nevada, the county re-closures of banquet halls in Florida, the fair cancellations ordered in Illinois and Vermont (the State fair boards of eight States recording, as context, the cancellations the gathering orders compelled), the production protocols of Los Angeles County and New York, the interstate traveler quarantines and the federal leave, entry and border instruments.254
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 winter re-tightening orders that prohibited receptions, catered events, banquet gatherings and indoor non-residential gatherings by name in Minnesota, Washington, Rhode Island, Michigan, Illinois and Howard County, held banquet, ballroom and event venues to twenty-five percent in North Dakota, twenty-five per room in Kentucky and ten percent and then ten persons in Pennsylvania, imposed seating, face-covering and no-dancing conditions on receptions in Ohio and Nebraska, closed everything in California and re-capped venues in twenty-two more jurisdictions and the largest metros, the production protocols and the federal sailing, entry, border, eviction and leave instruments.255
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 orders in force on January 1 and their stepped successors, the catered-event rules of New York (the lesser of seventy-five percent or 150 with notice and sign-in), New Jersey (thirty-five percent up to 150), Massachusetts (100 and 150), Connecticut (fifty percent up to 100) and Rhode Island (thirty with testing), the caps of ten to fifty in Michigan, Minnesota, Delaware, Virginia and Pennsylvania's percentages, the prohibition of every indoor private event in California, the banquet-facility cap of Maryland, the caps in force in thirty-three jurisdictions on the last day of the quarter, the county festival cancellations (the convention authorities' records of their closed halls being cited as context), and the federal conveyance, testing, workplace and entry orders.256
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 capacity, gathering and catered-event orders in force to their stepped expiry between April 6 and June 30, 2021, California's testing-or-vaccination condition on every indoor guest from April 15 to June 15 and its mega-event rule thereafter, the caps still in force in New Mexico, Hawaii and Rhode Island on the last day of the quarter and the large-event rules of Washington and California that took effect as the phase caps ended, the unvaccinated-person face-covering rules of eight States, the exposure-control requirement those States kept when they lifted their caps, the production protocols and workplace standards, the convention halls' continued closure (recorded by their authorities as context) and the federal conveyance, entry, border, workplace and OSHA instruments.257
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 order and security directives (the airborne-transmission controls on every conveyance and transportation hub), the entry proclamations and land-border notices, the Title 42, testing and sailing orders, the federal workplace, contractor and OSHA instruments, Hawaii's proclamation and Executive Order 21-05, Nevada's Directives 047, 049 and 050, the statewide face-covering orders of Louisiana, Oregon, Illinois, New Mexico and the District, each a workplace infection-prevention and exposure-control requirement enforced against the business, Washington's face-covering, event and vaccination instruments, California's mega-event rule and workplace standard, Rhode Island's Reopening Order and venue regulation, the State emergency, health-care, school, court and workforce instruments of every other jurisdiction, the vaccination-proof and gathering orders of New York City, San Francisco, New Orleans and Honolulu, the Los Angeles County, Pasadena and City of Los Angeles orders, King County's orders, Savannah's cancellation of every event on City property, the local face-covering orders inside every venue in more than thirty jurisdictions, the vaccination-or-test orders on the industry's part-time workforce, the school face-covering and quarantine orders of the 2021-22 year, the quarantine and isolation orders, the sector regulators' instruments and the continuing suspension the orders of the five preceding quarters caused.258
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.259
Each finding is established by a preponderance of the evidence, on public records subject to judicial notice, in a de novo proceeding.260 Each position taken in this analysis 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, the United States' representations to two federal courts, the Notice's own favorable provisions, and the instruments themselves.261 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(a), as amended by Pub. L. 119-21, § 70605(f), reaches a claim "for an excessive amount" made without reasonable cause; a claim that applies the words Congress wrote to the orders in the Library is not excessive, and this record establishes reasonable cause for it; and a position that applies the words Congress wrote to the Federal Register and the State registers is not frivolous under section 6702 or Notice 2010-33, which identifies no position concerning the credit or the meaning of a governmental order.262 Fraud is the Government's burden by clear and convincing evidence, and nothing in a claim founded on the public record supports it.263
Every exhibit cited on this page is in the Library, indexed with its issuer, instrument, dates, in-force quarters, limitation types, grade and source. Only exhibits whose primary source was read, or that were confirmed from an identifiable secondary source, are cited by name; an instrument the record has not retrieved is described by category only. The sector exhibits for this industry are the Los Angeles County production and event protocols (Ex. SEC-25-001; Ex. SEC-25-007; Ex. SEC-25-008; Ex. SEC-25-015), the New York media-production guidance (Ex. SEC-25-004), the FilmLA records (Ex. SEC-25-005; Ex. SEC-25-006), the Restaurant Revitalization Fund statute (Ex. SEC-25-009), the DiMartile order (Ex. SEC-25-012) and The Knot's studies (Ex. SEC-25-013; Ex. SEC-25-014); the fifty-one-row regime table for the industry is on this page.