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 the real estate industry of 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 business-closure orders of forty-two States and the District of Columbia that prohibited or confined in-person brokerage and made every open house unlawful, the appointment and party-cap conditions of the first reopening orders, the closure of the recorders' counters, the emergency remote-notarization instruments of twenty-plus States, the federal and State eviction and foreclosure moratoria and court stays, and the exterior-only and desktop appraisal instruments of the federal housing regulators, 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' appointment, party-cap and face-covering conditions on showings and offices, the exposure-control requirements of the reopening plans, the CDC's nationwide eviction order from September 4, 2020, the federal and State moratoria in force throughout, the courts' eviction stays and foreclosure-sale cancellations, the notarial and appraisal instruments, and the traveler quarantines that confined the industry's customers.
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 CDC order and its extension by Act of Congress, the federal and State moratoria and the new eviction statutes of New York and Oregon, the winter re-tightening orders that re-closed or re-capped offices, leasing centers, showings and gatherings in eighteen jurisdictions and eight metros, the remote-work rules of the State occupational-safety agencies, the courts' orders, and the notarial and appraisal 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 CDC order as extended to March 31 and June 30, 2021, the federal and State moratoria, the winter orders through their stepped expiry, the federal workplace order, the occupational-health controls of every federal building (face coverings, distancing and a twenty-five percent occupancy cap), the conveyance face-covering order, the airborne-transmission control on every commute, the entry proclamations, the courts' orders, and the notarial and appraisal instruments.
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 CDC order through June 30 and its extension to July 31, the federal moratoria and their extensions to September 30, the State moratoria, bridges and phase-outs, the capacity and telework orders through their expiry between April 4 and July 1, 2021, the federal workplace, conveyance, entry and border orders, the courts' orders, the notarial instruments and the appraisal instruments to May 31 and June 30.
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 CDC eviction orders of June 24 and August 3, 2021, the FHA, FHFA, VA and USDA eviction moratoria to September 30, the CFPB's Regulation X safeguards from August 31, the eviction statutes, proclamations, procedures and court stays of sixteen jurisdictions and the territories, the remote-notarization instruments of ten States, the local eviction and court instruments of the largest metros, the workplace infection-prevention and exposure-control orders of the States, the District and the metropolitan areas named in subpart (B) of the third quarter of 2021 (universal indoor face coverings, vaccination-proof conditions and access rules) from July 17, 2021 onward, the State emergencies, general orders and counter-orders, the courts' orders in more than twenty States, and the federal conveyance, workplace, contractor, entry and border orders in force on every day of the quarter.
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.263
Each finding is established by a preponderance of the evidence, on public records subject to judicial notice, in a de novo proceeding.264 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, and the instruments themselves.265 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 State registers is not frivolous under section 6702 or Notice 2010-33.266 Fraud is the Government's burden by clear and convincing evidence, and nothing in a claim founded on the public record supports it.267 The eligibility of employers in this industry for each of the six quarters was established by the public record when the credit was claimed, and it is established by the public record now.
The Library is organized by layer: the federal instruments, the fifty States and the District, the metropolitan areas, the agencies, the ecosystem, the sector regulators and the legal authorities. Every exhibit cited on this page is indexed there with its issuer, instrument, dates, in-force quarters, limitation types, grade, source and, where retrieved, the file itself, and only instruments read from the issuing authority or confirmed from an identifiable secondary source are cited by identifier. The method is described at /methodology.