Findings
On the record set out in the layers, quarters, functions and interconnected-economy sections above, and on the law set out on this site's statute, Notice and Government's-own-words pages and in the answers above, the findings below follow for each of the six calendar quarters. Each is stated in the statutory words; each rests on instruments in the Library identified by exhibit number; and each is made on the only standard that governs a refundable credit, the preponderance of the evidence. The Service's form sentence that no orders were in effect describes, for each of these quarters, a period that did not occur; the findings below are the record's answer to it, quarter by quarter and exhibit by exhibit.
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 mining, oil and gas and energy services throughout the United States was partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19: the stay-home and closure orders of forty-two States and the District of Columbia with their conditions on essential operations (Ex. TX-008; Ex. CO-013; Ex. NM-006; Ex. LA-005; Ex. OK-011; Ex. PA-002; Ex. WV-009; Ex. CA-002; Ex. MN-010; Ex. NV-004; Ex. AK-021), Pennsylvania's closure of the mines and mining contractors by name (Ex. PA-004), the arrival-quarantine orders of twenty States (Ex. TX-007; Ex. ND-021; Ex. MT-010; Ex. WY-010; Ex. OK-010; Ex. AK-012), the lodging orders (Ex. NM-006; Ex. NM-010; Ex. CT-013; Ex. ME-013), the sector regulators' instruments (Ex. SEC-23-001; Ex. SEC-23-003; Ex. SEC-23-004; Ex. SEC-23-008; the Industrial Commission's direction of March 24, 2020 reinstating the waivers, recorded in Ex. SEC-23-028; FERC Order No. 870, Ex. SEC-23-018), the federal entry, border, allocation and leave instruments (Ex. FED-203; Ex. FED-211; Ex. FED-216; Ex. FED-239; Ex. FED-075; Ex. FED-170) and the county orders of the industry's cities (Ex. MET-HOU-005; Ex. MET-DEN-005; Ex. MET-MSY-003).
The third quarter of 2020
During the calendar quarter beginning July 1, 2020 and ending September 30, 2020, the operation was partially suspended due to the traveler-quarantine orders of New Mexico, North Dakota, Alaska, Kansas, Hawaii and the Northeast (Ex. NM-024; Ex. ND-021; Ex. AK-039; Ex. KS-054; Ex. HI-003; Ex. MA-025), the face-covering and conditioned-operation orders of every energy State, its workplace infection-prevention and exposure-control requirements (Ex. TX-022; Ex. CO-031; Ex. LA-014; Ex. LA-018; Ex. KY-017; Ex. PA-016; Ex. PA-017), Virginia's binding workplace standard (Ex. VA-036), New Mexico's lodging caps and re-closures (Ex. NM-026; Ex. NM-032), the sector regulators' instruments (Ex. SEC-23-006; Ex. SEC-23-002; Order No. 870, Ex. SEC-23-018; Ex. AGY-ST-LABOR-WORKPLACE-027), the federal border, entry, allocation and leave instruments (Ex. FED-221; Ex. FED-244; Ex. FED-211; Ex. FED-077; Ex. FED-172) and the county orders of the industry's cities (Ex. MET-HOU-020; Ex. MET-PIT-006; Ex. MET-MSY-054).
The fourth quarter of 2020
During the calendar quarter beginning October 1, 2020 and ending December 31, 2020, the operation was partially suspended due to the winter re-tightening orders of New Mexico, North Dakota, Pennsylvania, Colorado, Wyoming, Utah, Oklahoma and Texas (Ex. NM-033; Ex. NM-039; Ex. NM-041; Ex. ND-066; Ex. PA-020; Ex. PA-021; Ex. PA-022; Ex. PA-023; Ex. CO-037; Ex. WY-040; Ex. UT-029; Ex. OK-033; Ex. TX-025), the State OSHA rules of California, Oregon and Michigan (Ex. CA-023; Ex. OR-032; Ex. MI-054), the travel orders of eight States (Ex. PA-021; Ex. MD-023; Ex. VT-034; Ex. VT-035; Ex. VT-080; Ex. NH-027; Ex. WA-054; Ex. AK-035; Ex. KS-055; Ex. NM-037), California's Regional Stay at Home Order (Ex. CA-020), the sector regulators' instruments (Ex. SEC-23-006; Ex. SEC-23-007; Order No. 870, Ex. SEC-23-018), the federal border, entry, allocation and leave instruments (Ex. FED-225; Ex. FED-248; Ex. FED-037; Ex. FED-078; Ex. FED-172) and the county orders of the industry's cities (Ex. MET-DEN-028; Ex. MET-SAT-055; Ex. MET-LA-012).
The first quarter of 2021
During the calendar quarter beginning January 1, 2021 and ending March 31, 2021, the operation was partially suspended due to the federal conveyance mask order and security directives, the airborne-transmission control on every flight, bus, train and transportation hub (Ex. FED-020; Ex. FED-050; Ex. FED-053; Ex. FED-054; Ex. FED-055), the entry proclamations, land-border limits and testing order (Ex. FED-207; Ex. FED-229; Ex. FED-252; Ex. FED-042), the traveler-quarantine orders of New Mexico, Pennsylvania, Alaska, Kansas and the Northeast (Ex. NM-037; Ex. PA-021; Ex. AK-035; Ex. KS-055; Ex. CT-028; Ex. MA-025), the face-covering, capacity and telework orders of Texas, Wyoming, North Dakota (to January 18), Colorado, Pennsylvania, New Mexico and Minnesota (Ex. TX-022; Ex. TX-025; Ex. WY-040; Ex. ND-066; Ex. ND-074; Ex. CO-057; Ex. PA-020; Ex. PA-031; Ex. NM-047; Ex. MN-037), the State OSHA rules (Ex. VA-037; Ex. CA-023; Ex. OR-032) and the county orders of the industry's cities (Ex. MET-AUS-017; Ex. MET-SAT-055; Ex. MET-LA-014).
The second quarter of 2021
During the calendar quarter beginning April 1, 2021 and ending June 30, 2021, the operation was partially suspended due to the federal conveyance mask order and security directives, the airborne-transmission control on every flight, bus, train and transportation hub (Ex. FED-020; Ex. FED-051; Ex. FED-056), the entry proclamations and land-border limits (Ex. FED-207; Ex. FED-208; Ex. FED-232; Ex. FED-255), Colorado's Public Health Order 20-38 (Ex. CO-051), New Mexico's county framework and lodging caps to June 30 and its order of June 30 (Ex. NM-054; Ex. NM-057; Ex. NM-060), Pennsylvania's mitigation and face-covering orders (Ex. PA-031; Ex. PA-020), Kentucky's Healthy at Work (Ex. KY-049), the State OSHA rules of five States (Ex. CA-024; Ex. VA-037; Ex. OR-041; Ex. AGY-ST-LABOR-WORKPLACE-062; Ex. WA-070), the Kansas and Hawaii quarantines (Ex. KS-056; Ex. HI-023), the sector regulators' instruments (Ex. SEC-23-026; Ex. SEC-23-018; Ex. PA-040) and the county orders of the industry's cities (Ex. MET-DEN-014; Ex. MET-LAS-003; Ex. MET-HOU-037).
The third quarter of 2021
During the calendar quarter beginning July 1, 2021 and ending September 30, 2021, the operation was partially suspended due to the federal conveyance mask order and security directives, the airborne-transmission control on every flight, bus, train and transportation hub (Ex. FED-020; Ex. FED-051; Ex. FED-052), the land-border limits and entry proclamations (Ex. FED-232; Ex. FED-233; Ex. FED-234; Ex. FED-235; Ex. FED-255; Ex. FED-256; Ex. FED-257; Ex. FED-258; Ex. FED-207; Ex. FED-208), the federal workplace orders and the contractor order of September 9, 2021, issued in the quarter with its clauses attaching from October 15 (Ex. FED-060; Ex. FED-272; Ex. FED-063), FERC's waiver regime under Order No. 870 (Ex. SEC-23-018), in force and being extended into 2022 on September 14, 2021 (Ex. SEC-23-023), New Mexico's orders of June 30, July 30, August 17 and September 15 (Ex. NM-060; Ex. NM-062; Ex. NM-067; Ex. NM-070), Louisiana's Proclamations 137, 167 and 181 JBE 2021 (Ex. LA-036; Ex. LA-038; Ex. LA-040), Colorado's Public Health Order 20-38 (Ex. CO-041; Ex. CO-053; Ex. CO-091), Nevada's Directive 047 (Ex. NV-041), the State OSHA rules of four States (Ex. CA-024; Ex. VA-037; Ex. OR-044; Ex. AGY-ST-LABOR-WORKPLACE-055), the face-covering orders of Oregon, Illinois, Washington and the District, the airborne-transmission controls those jurisdictions imposed on every indoor workplace (Ex. OR-048; Ex. IL-042; Ex. IL-043; Ex. IL-044; Ex. WA-078; Ex. DC-057), Washington's contractor proclamation (Ex. WA-077), Kansas's quarantine list (Ex. KS-057), the Navajo Nation's orders (Ex. AZ-079; Ex. AZ-082), the Oklahoma Corporation Commission's remote-hearing regime (Ex. SEC-23-026), the Texas Supreme Court's emergency orders (Ex. TX-040), the utility moratoria (Ex. AGY-ST-UTILITIES-HOUSING-AG-007; Ex. WA-014), the school, quarantine and health-care orders (Ex. IL-040; Ex. RI-059; Ex. FED-080) and the county and city orders of the industry's cities (Ex. MET-HOU-052; Ex. MET-DFW-028; Ex. MET-SAT-067; Ex. MET-DEN-026; Ex. MET-PIT-036; Ex. MET-MSY-027; Ex. MET-LAS-006; Ex. MET-SLC-016; Ex. MET-LA-019; Ex. MET-SFO-010; Ex. MET-SEA-002).
The standards satisfied
Preponderance
The employer in a refund suit carries its burden by a preponderance of the evidence, and the court redetermines the entire liability de novo; the United States describes the forum as "de novo judicial review of the merits" in which "the statute will control."282 The orders in the Library are public records whose authenticity and content can be "accurately and readily determined from sources whose accuracy cannot reasonably be questioned," and the court "must take judicial notice if a party requests it and the court is supplied with the necessary information."283 Every exhibit cited on this page is supplied, in the Library and its index, with its issuer, date, effective date, end date, source and grade. The findings above are made on that record and would be made on it by any finder of fact.
Fraud
Fraud is the Government's burden, "by clear and convincing evidence." A position that rests on public instruments subject to judicial notice, on the statute's text and on the United States' own representations to two federal courts is the antithesis of one.284
Substantial authority and reasonable basis
An eligibility position founded on this record carries substantial authority under the objective standard of Treas. Reg. § 1.6662-4(d): it rests on the Code, on Tri-State, on the Notice's own provisions where they favor the employer, and on "a well-reasoned construction of the applicable statutory provision"; it satisfies the reasonable-basis standard of Treas. Reg. § 1.6662-3(b)(3) many times over.285 Such a position is taken with reasonable cause and in good faith within § 6664(c)(1); it is not frivolous within § 6702(a), no listed frivolous position concerning the ERC or the meaning of a governmental order; and § 6676(a), as amended by Pub. L. 119-21 § 70605(f) for claims made after July 4, 2025, penalizes only an excessive amount not due to reasonable cause, a description no claim founded on this record meets.286
Admissions and consistency
The United States' statements in Doc. 44, Doc. 49, the Brief for Appellees and the transcript are admissions of a party-opponent under Rule 801(d)(2); judicial estoppel is available against the contrary positions; and the Service is bound by its own directive to the Notice "to the same extent as a revenue ruling."287 Under Loper Bright and Skidmore, no Notice gloss receives weight beyond its "thoroughness, consistency, and persuasiveness," and a gloss described to two courts as a safe harbor and applied in letters as a floor has no consistency to weigh.288 The COVID Project holds the United States to the positions it took to obtain judgment.