In plain terms: the letter says the steps you took, such as spacing, screening, masking and capacity limits, were your own choice, and points to Q&A-14 of the IRS's Notice. Q&A-14 by its own terms reaches only a suspension "not due to a governmental order," and the United States and the District Court have defined the excluded employer as one "not being ordered to do so." No employer in any State answered that description in any of the six quarters. Every reopening order made the right to operate conditional on measures stated in "shall" and "must," backed by fines, license conditions or prosecution; every State's communicable-disease and workplace-safety statutes commanded the same conduct; and the liability shields protected only the business that complied. Texas is worked through on this page as the example. Nothing was voluntary.
The employer's measures were voluntary (Q&A-14).
As stated in the Service's letters, Forms 886-A and memoranda
The instruments carry the force of law
This analysis, and the twenty-seven industry analyses that apply it, rely on no voluntary measure. Every instrument cited carries an operative clause with the force of law and, in the Library's record, its enforcement provision: the fines and confinement of the Texas Disaster Act recited in Executive Order GA-14 (Mar. 31, 2020); the gross misdemeanor of Washington's Proclamation 20-57 (Ex. SEC-20-031); the license conditions of the alcohol and gaming regulators (Exs. AGY-ST-ALCOHOL-051, AGY-ST-GAMING-RACING-002); the conditions of Medicare participation (Exs. FED-092, FED-094); the civil penalties of the federal and State occupational safety standards (Ex. FED-080; Virginia's Final Permanent Standard, 16 VAC 25-220 (Jan. 13, 2021; effective Jan. 27, 2021); the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards as readopted June 17, 2021); and the criminal penalties of 42 U.S.C. § 271 that back the federal conveyance order (Ex. FED-020). Where this analysis cites a guidance document it does so because an order incorporated it by reference and gave it the order's force, as Texas's GA-14 incorporated the CISA list (Ex. SEC-07-001) and Executive Order 13917 directed the enforcement of the CDC-OSHA meat-processing guidance (Exs. SEC-20-001, SEC-20-028).1
Tri-State on the point
The United States argued in Tri-State Memorial Hospital v. United States, No. 2:25-cv-0181-TOR, ECF No. 38 (E.D. Wash. May 28, 2026) ("Tri-State"), that the hospital would have taken its protective steps regardless of the proclamation. The court held otherwise:
Some of the interruptions and diversions were caused by COVID-19 illness, however, the required protocols and procedures to comply with the Proclamation were not. The Proclamation provided the guidance and procedures that the businesses were required to adhere to and follow to be compliant with the order. Sick patients and employees alone did not require additional protocols. Based on this argument, there are not many businesses or any business that would be eligible under the ERC at all. Therefore, this argument fails.
Tri-State, ECF No. 38, at 20-21
The standing duties
Q&A-14 of the Notice reaches, by its own terms, only a suspension "not due to a governmental order" (Notice 2021-20, 2021-11 I.R.B. 922, Q&A-14, at 929), and the United States and the District Court have defined the excluded employer as one "not being ordered to do so" (Doc. 49 at 18, the summary-judgment order of June 20, 2025 in Stenson Tamaddon, LLC v. IRS, No. 2:24-cv-01123-SPL (D. Ariz.), ECF No. 49; Br. for Appellees at 42, the United States' answering brief of January 30, 2026 in No. 25-4217 (9th Cir.)). No employer in any State answered that description in any of the six quarters, and the standing-duties analysis, Nothing Was Voluntary, sets out why for every jurisdiction. Texas is the worked example. The reopening orders permitted operation only on conditions with the force of law: "Every business establishment in Texas shall operate at no more than 50 percent of the total listed occupancy," every person "shall wear a face covering ... when inside a commercial entity," and for outdoor areas "social distancing and other protocols must be followed," each order carrying the Disaster Act's penalty (Ex. TX-011 (GA-18); Executive Orders GA-28 (June 26, 2020), GA-29 (July 2, 2020) and GA-32 (Oct. 7, 2020); Tex. Gov't Code § 418.173, Ex. DUT-TX-012). The standing statutes commanded the same conduct independently: the communicable-disease control act, whose section 81.002 provides that "Each person shall act responsibly to prevent and control communicable disease" and whose sections 81.082 to 81.087 supply the control measures on persons and premises and the offenses for refusal (Exs. DUT-TX-001, DUT-TX-002, DUT-TX-003, DUT-TX-004, DUT-TX-005, DUT-TX-006); the workplace-safety duty, Labor Code section 411.103, under which "Each employer shall" provide "a place of employment that is reasonably safe and healthful for employees" (Ex. DUT-TX-013); and the general duty clause, 29 U.S.C. § 654(a)(1), enforced by citation from September 2020 (Exs. DUT-FED-001, LAW-487). The Legislature then fixed the standard of care as compliance with "government-promulgated standards, guidance, or protocols," for every action commenced on or after March 13, 2020 (Exs. DUT-TX-014, DUT-TX-015). The safe-workplace statute had no COVID-19 content until the health authorities said what a safe workplace required; the measures were taken because those directives defined the duty and would not have been taken without them. "Due to" is but-for causation (Tri-State, ECF No. 38, at 17-19), and the causation here runs from the command to the measure without an intervening choice. The Notice's own words say the same: a modification "required by a governmental order as a condition of reopening" is a partial suspension due to the order (Q&A-18, at 930).2
The three layers hold in every jurisdiction, and the Service's ground fails in all fifty-one. First, the orders' operating conditions: in every State the right to operate was conditioned on distancing, screening, sanitation, capacity and face-covering measures stated in "shall," "must," "only if" or "provided that," so that the measure the Service calls "beyond the order" was ordinarily the order's own term. Second, the standing law: a communicable-disease control statute with a penalty in fifty-one of fifty-one jurisdictions; an offense reaching violation of the pandemic orders in fifty-one of fifty-one; a workplace-safety duty binding every private employer in fifty-one of fifty-one, federal everywhere and State-enacted in forty-seven; and a COVID-19 workplace rule with its own force of law in twenty-eight. Third, the shields: nineteen legislatures protected only the business that complied with governmental standards, guidance, orders or protocols, and eleven more fixed a culpability floor and left the orders and the safety statutes to enforce it. The standing-duties page carries the fifty-one jurisdictions and the instruments behind each count. Where an instrument in the record was a recommendation, this analysis says so and names the instrument that made it compulsory. The United States' own definition of the exclusion, an employer "not being ordered to do so," is the definition these layers answer: an employer that reorganized its floor, screened its workers, capped its occupancy or masked its staff because chapter 81, section 411.103, GA-28 and section 148.003 required it, or because their equivalents in its own State did, was being ordered to do so. This analysis holds the United States to its own definition.3
A measure required by an order enforced by fine, license revocation, exclusion from Medicare or prosecution is not a voluntary measure, and the Service's ground, applied to the instruments in this record, has nothing to attach to.
Q&A-14 excludes only a measure taken when you were "not being ordered to do so"; that is the United States' own definition. In every State, the order that let you reopen told you, in "shall" and "must," how to operate, and your State's disease-control and workplace-safety statutes and the federal general duty clause commanded the same conduct on pain of penalty. A step you took because the law required it was not voluntary, and the court in Tri-State has already held that protocols compelled by an order are suspensions caused by the order.