Findings
For each of the six calendar quarters from the second quarter of 2020 through the third quarter of 2021, the operation of the trade or business of employers in this industry, churches, religious organizations and nonprofits, was partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19. The orders are identified by exhibit identifier, issuer, date and operative clause in the layers and quarters sections above and on the State, metro and federal pages of the Library; the functions they reached are identified in the operations and function-by-function sections; the causal mechanism is stated in the interconnected-economy section; the Service's grounds are answered in the section above; and the United States' own representations, which confirm every element of the analysis, are collected on this site's page of the Government's positions. The record establishes the findings below, stated in the statute's words.
The findings by quarter
The second quarter of 2020
The operation of the trade or business of employers in this industry was partially suspended during the calendar quarter beginning April 1, 2020 and ending June 30, 2020 due to orders from appropriate governmental authorities limiting commerce, travel and group meetings (for commercial, social, religious and other purposes) due to COVID-19, namely the stay-at-home, gathering-ban, closure, school-closure and telework orders of every State and the District of Columbia, the orders of the largest metropolitan authorities, the reopening orders of May and June 2020 that capped worship and gatherings at fixed numbers or percentages, and the federal visitation, prison, leave, entry and consular orders. The suspension reached every one of the eleven functions.
The third quarter of 2020
The operation of the trade or business of employers in this industry was partially suspended during the calendar quarter beginning July 1, 2020 and ending September 30, 2020 due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the reopening orders that capped worship and gatherings in every State, the July 2020 re-closure of indoor worship in California and the tightening of gathering caps in Kentucky, New Jersey and New Orleans, the statewide and metropolitan face-covering orders (workplace infection-prevention and exposure-control requirements carried with the reopening regimes' distancing and protocol conditions), the school orders that kept classrooms closed or remote, and the federal visitation, prison, eviction, entry and consular orders. The suspension reached every one of the eleven functions.
The fourth quarter of 2020
The operation of the trade or business of employers in this industry was partially suspended during the calendar quarter beginning October 1, 2020 and ending December 31, 2020 due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the cluster and winter orders of New York, Connecticut, New Jersey, Massachusetts, Rhode Island, Maine, Pennsylvania, Delaware, Maryland, the District of Columbia, Virginia, Kentucky, Michigan, Minnesota, Illinois, Wisconsin, Indiana, Iowa, North Dakota, Nebraska, California, Washington, Oregon, Nevada, New Mexico and Colorado, which cut the caps on worship, education, events and rentals below the summer's levels, prohibited indoor events and cross-household gatherings and closed schools again; the metropolitan rollbacks of the largest metros; and the federal visitation, prison, eviction, leave and entry orders. The suspension reached every one of the eleven functions.
The first quarter of 2021
The operation of the trade or business of employers in this industry was partially suspended during the calendar quarter beginning January 1, 2021 and ending March 31, 2021 due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the winter orders as amended in the Northeast, the West Coast, the upper Midwest, Colorado, Kentucky, Nevada and the District of Columbia, which held worship at 25 to 50 percent and gatherings at ten to twenty-five until steps in February and March; the metropolitan orders; the school and child-care orders; and the federal conveyance order of February 1, 2021, the entry proclamations and the testing, visitation, prison and workplace orders. The suspension reached every one of the eleven functions.
The second quarter of 2021
The operation of the trade or business of employers in this industry was partially suspended during the calendar quarter beginning April 1, 2021 and ending June 30, 2021 due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the worship and gathering caps that remained in force until dates between April 12 and June 30, 2021 in California, Delaware, the District of Columbia, Kentucky, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island and Washington and Connecticut's event caps to May 20, 2021; the metropolitan orders that outlasted the States'; the school and child-care orders; and the federal conveyance, entry, border, visitation, eviction, prison and health-care orders. The suspension reached every one of the eleven functions.
The third quarter of 2021
The operation of the trade or business of employers in this industry was partially suspended during the calendar quarter beginning July 1, 2021 and ending September 30, 2021 due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the federal conveyance order and Transportation Security Administration directives, the federal eviction and housing moratoria, the CMS visitation conditions and the OSHA Healthcare Emergency Temporary Standard, the Bureau of Prisons' modified operations, the entry proclamations and land-border notifications, Executive Order 14042 and the federal workplace principles, each in force on July 1, 2021; the indoor face-covering orders of Illinois, Louisiana, Nevada, New Mexico, Oregon, Washington, Hawaii and the District of Columbia, each an airborne-transmission control imposed on every indoor workplace and place of assembly, and Hawaii's statewide gathering caps; the school and child-care face-covering and staff-vaccination orders of New Jersey, Connecticut, Kentucky, Illinois, Delaware, Pennsylvania, New York, Oregon, Washington, California, Louisiana, Virginia and Rhode Island, which by their terms reached every "public, private, and parochial" school and every child-care center, and Massachusetts's public-school face-covering requirement; the health-care-worker orders of fourteen jurisdictions reaching religiously affiliated hospitals, nursing homes, hospices and home-care agencies; the State emergencies and eviction moratoria; the Delta-wave orders of Los Angeles, the Bay Area, Sacramento, St. Louis, Kansas City, Atlanta, Savannah, New Orleans, Philadelphia, Chicago, Boston, Honolulu, Denver, King County, Dallas and Harris Counties, the Maryland and Virginia suburbs of Washington, the Twin Cities, New York City and Salt Lake; the corrections, tribal and territorial orders; and the court orders. Independently, that operation was partially suspended during the quarter by the compelled delay in restoring the operations that the orders of the five preceding quarters had dismantled, a delay the orders' own stepped structure fixed. The suspension reached every one of the eleven functions.
The elements and the standards
The seven elements of the Suspension Clause, analyzed on this site's statute page, are each satisfied for each quarter: the employer operated a trade or business; its operation was suspended in part; the suspension occurred during the calendar quarter; the suspension was due to orders; the orders came from appropriate governmental authorities; the orders limited commerce, travel or group meetings; and the orders were issued due to COVID-19. The employer's burden in a refund suit is a preponderance of the evidence; the orders are public records subject to judicial notice under Rule 201(b); the United States' agreed definitions in Tri-State and its representations in Stenson Tamaddon are admissions under Rule 801(d)(2); and the Notice, where it helps the employer, binds the Service by the Service's own directive. The ten percent figure is the United States' safe harbor, met on its own terms for this industry and, by the United States' own account, not a requirement. The gross-receipts prong is the other prong and is not in issue.278
What an employer in this industry keeps
An employer in this industry substantiates its eligibility under Q&A-70 with records of the following kinds: the orders, by exhibit identifier, in force in each quarter in the employer's State, its metro and the federal layer (the Library's record builder assembles them), together with the orders on its counterparties (schools, hospitals, nursing homes, prisons, venues, transit, courts); the employer's function map (the operations section above and the function table at the end of this page) and its own calendar of cancelled or capped services, closed or remote classes, cancelled events and rentals, converted food and shelter programs and suspended visitation, dated against the orders; attendance, enrollment, event and rental records for each quarter against the same quarter of 2019, and hours of service by function for the same comparison, which is the measure Q&A-11 itself directs; payroll records by pay period, so that qualified wages are aligned with the period of suspension under Q&A-22's second sentence and with the large-employer rule of section 2301(c)(3)(A) for 2020; the employer's health-plan expense records; and, for the third quarter of 2021, the specific instruments of subpart B of that quarter's section above in force in its jurisdiction. The records are kept for at least four years under Q&A-71. Where a Service letter has issued, its sentences are answered ground by ground in the section above and decoded on this site's letter decoder.279
The Service's premise about this industry is that between March 2020 and September 2021 an employer operating a house of worship, a religious school, a food pantry, a shelter, a chaplaincy or a nonprofit office in the United States was subject to no governmental order limiting its operations. The record answers the premise with the orders: their exhibit identifiers, their issuers, their dates and their words. Congress asked whether the operation was partially suspended during the quarter due to orders limiting commerce, travel or group meetings for religious and other purposes; the orders of this record limited those meetings in terms, in every State, in every quarter, and the United States has told two federal courts the rules by which that question is answered. The Service's sentence that no governmental orders were in effect is not a close call on a contested record. It is factually incorrect for every one of the six quarters, and for the third quarter of 2021 it describes a quarter that did not occur. The United States is held to those positions, and the record holds the Service to the orders.