In plain terms: some letters say the documents you rely on are "guidance, recommendations or best practices, not orders." The Library grades every instrument and records its operative clause and its enforcement provision. The instruments it publishes are executive orders, public health orders, proclamations, emergency rules, regulations, statutes, federal orders and court orders, each with a penalty or a license consequence. Where a State order told businesses to follow a guidance document, the guidance became the order's text and carried the order's force: Texas defined who could stay open by the federal CISA list; New York by its Empire State Development guidance; the meat plants by the CDC-OSHA guidance an executive order directed to be enforced. The documents that describe themselves as not legal authority are the Service's own. Its FAQ pages said they "may not be relied upon as legal authority," and its Chief Counsel memoranda say they "may not be used or cited as precedent."
"The instruments relied on are guidance, recommendations or best practices, not orders."
Form language of the Service's letters and Forms 886-A on the suspension prong
The Library grades every instrument. The instruments it publishes are orders, proclamations, directives, emergency rules, regulations, statutes and court orders published by the issuing authority, each read from the primary source or verified against a secondary source, and each recorded with its operative clause and its enforcement provision. The CDC conveyance order is an order under 42 U.S.C. § 264 and 42 C.F.R. § 70.2, enforced by 42 U.S.C. § 271 (Ex. FED-020). The Healthcare Emergency Temporary Standard is a regulation at 29 C.F.R. § 1910.502 (Ex. FED-080). Virginia's 16VAC25-220 and California's 8 C.C.R. § 3205 are regulations with civil penalties (Ex. SEC-10-043; Ex. SEC-10-041). The entry proclamations are proclamations under 8 U.S.C. § 1182(f) (Ex. FED-207; Ex. FED-208). The State orders are executive orders and public health orders under the States' emergency statutes with the penalties those statutes provide (Texas Executive Order GA-09, Ex. TX-004; New York Executive Order 202.8, Ex. NY-002; California Executive Order N-33-20 of March 19, 2020). The license conditions of the alcohol, gaming and health regulators are enforced by suspension of the license or of program participation (Florida's DBPR Emergency Order 2020-09, Ex. AGY-ST-ALCOHOL-051; the Louisiana Gaming Control Board's COVID-19 Emergency Order No. 24, Ex. AGY-ST-GAMING-RACING-074; the Medicare conditions of participation at 42 C.F.R. §§ 482.42(e) and 485.640(d), Ex. SEC-01-004).1
Guidance incorporated by order
Where a State order incorporated a guidance document, the guidance became the order's text and carried the order's force. Texas Executive Order GA-14 of March 31, 2020 and thirty other closure orders defined the businesses permitted to operate by the federal CISA list of essential critical infrastructure workers (Ex. SEC-07-001; Ex. SEC-07-003). New York Executive Orders 202.6 of March 18, 2020 and 202.8 of March 20, 2020 made the Empire State Development guidance the rule of which businesses could open and how (Ex. NY-002; Ex. SEC-07-023). California's State Public Health Officer Order of June 11, 2021 made the Department of Public Health's guidance for K-12 schools binding (Ex. CA-034). Executive Order 13917 of April 28, 2020 directed the enforcement of the CDC-OSHA guidance for meat and poultry processing in every meat plant (Ex. SEC-20-001; Ex. SEC-20-028). And the reopening orders of the States made their sector guidance a condition of reopening: Texas's emergency dental rule (Ex. SEC-03-017), Kentucky's Healthy at Work requirements for dealerships (Ex. SEC-08-010), New York's Interim Guidance for Office-Based Work under its reopening orders. The label on the incorporated document does not change the character of the order that incorporated it.2
Q&A-10 of Notice 2021-20 (the "Notice") speaks of "orders, proclamations, or decrees" and includes among governmental orders "[a]n order from a local health department mandating a workplace closure for cleaning and disinfecting." The instruments in the Library are those. The Service's own instruments are the opposite case. Its FAQ pages of 2020 said of themselves: "This FAQ is not included in the Internal Revenue Bulletin, and therefore may not be relied upon as legal authority. This means that the information cannot be used to support a legal argument in a court case." Its Chief Counsel memoranda AM 2023-005 and AM 2023-007 each say: "This GLAM may not be used or cited as precedent."3
The Service's ground describes the Service's own documents, not the instruments in the Library. The instruments in the Library carry the force of law. The Service's documents, by their own terms and by the United States' account of the Notice, carry none.
For each instrument you rely on, quote its operative clause (the words "shall," "must," "is prohibited," "may not") and its enforcement provision (the fine, the misdemeanor, the license suspension). The Library records both for every instrument it publishes and marks each as read from the primary source or verified against a secondary source. Where your State's order told you to follow a guidance document, cite the order that incorporated it; the guidance carried the order's force. And note which documents actually describe themselves as not legal authority: the Service's FAQ pages and its Chief Counsel memoranda.