In plain terms: some of the Service's letters say that the changes an order forced on a business, such as masks, gloves, spacing or screening, had "only a nominal effect" and so did not suspend anything. The statute contains no such test. It asks whether an order suspended part of the operation, and a change an order compelled in how part of the business ran is that suspension. A federal court has so held, and the Notice's own example treats a restaurant that reopened every part of its business under a table-spacing order as still partially suspended. The sentence the letters borrow was written about masks and one-way aisles. The orders in the Library fixed how many people a premises could hold, when it could open, how many patients it could treat, who had to be tested or vaccinated and who could be admitted. The sentence does not describe them.
"The required modifications (masks, gloves, spacing, screening) had only a nominal effect on operations (Q&A-18)."
Form language of the Service's letters and Forms 886-A on the suspension prong
The statute contains no "nominal effect" requirement. The Suspension Clause, section 2301(c)(2)(A)(ii)(I) of the CARES Act and section 3134(c)(2)(A)(ii)(I) of the Internal Revenue Code, asks whether "the operation of the trade or business ... is fully or partially suspended during the calendar quarter due to orders from an appropriate governmental authority limiting commerce, travel, or group meetings." A modification an order compelled is a change in how a portion of the operation ran; a change compelled by order is a delay, interruption or termination of that portion because of the order. Tri-State Memorial Hospital v. United States so held on protocols, screening, isolation rooms, removed waiting-room chairs and reassigned staff. And Notice 2021-20 (the "Notice") holds, in its own Q&A-17, Example 2, that a restaurant which "resumed all categories of its business operations" under an order requiring its indoor tables to be spaced six feet apart remained partially suspended, because the spacing rule "has more than a nominal effect on its operations."1
The history of the sentence
The sentence that mask, glove and one-way-aisle rules "will not result in more than a nominal effect on the business operations" first appeared in Q&A-18 of the Notice, released March 1, 2021. Its words are these: "Modifications altering customer behavior (for example, mask requirements or making store aisles one way to enforce social distancing) or that require employees to wear masks and gloves while performing their duties will not result in more than a nominal effect on the business operations." It is a factual conclusion about every business in the country, stated without record, in a document the United States has described to the District Court as one that "lacks the force of law" and that the District Court held "carries no force of law and is entitled to no deference."2
"But Notice 2021-20 is merely guidance issued so that the public can have the benefit of knowing how the IRS is interpreting the relevant ERC statutory provisions. The Notice ... lacks the force of law. The Notice itself does not require [the plaintiff] or its clients to do anything or prevent them from doing anything."
Doc. 44 at 19
The same filing told the District Court what the Service does consider. The United States wrote that "employees having to wear face masks may impact business operations" and that "orders that were otherwise directed at business operations (operational hours, space, etc.) would also be considered."3
"So, for instance, employees having to wear face masks may impact business operations .... Similarly, orders that were otherwise directed at business operations (operational hours, space, etc.) would also be considered ...."
Doc. 44 at 30
The instruments the sentence cannot reach
The Q&A-18 sentence speaks of masks and aisles. It does not speak of the orders that fixed the capacity of every premises (Texas Executive Order GA-28 of June 26, 2020; New York Executive Order 202.108 of May 17, 2021; Washington Proclamation 20-25.13, Ex. WA-065), the hours (Ohio's Stay at Home Tonight Order of November 19, 2020, Ex. OH-039; New York Executive Order 202.81, Ex. NY-039), the party size and seated service that New Jersey's dining rules fixed until the general reopening of May 28, 2021 (Ex. NJ-050), the fallow time between dental patients under Texas's emergency dental rule (Ex. SEC-03-017), the census-keyed suspension of elective procedures (Ex. SEC-01-050; Ex. PA-025), the weekly testing of every nursing-home employee (Ex. SEC-04-004), the eleven warehouse rules of New Jersey Executive Order No. 122 (Ex. SEC-11-020), the labor-camp occupancy and crew-bus rules of California's COVID-19 Prevention Emergency Temporary Standards (Ex. SEC-10-041), the vaccination or weekly testing of every health-care and school worker (Ex. CA-030; Ex. NY-071; Ex. NJ-056; Ex. CA-034; Illinois Executive Order 2021-20 of August 26, 2021) or the proof of vaccination required of every patron of a restaurant, gym or theater in New York City, San Francisco, New Orleans and Honolulu (Ex. MET-NYC-017; Ex. MET-SFO-011; Ex. MET-MSY-029; Ex. MET-HNL-035). Those are the modifications the Library records, and the sentence does not describe them.4
The Service's ground borrows a sentence written about masks and aisles and applies it to orders that suspended a hospital's elective procedures, bound a warehouse floor to eleven rules and reduced a restaurant's dining room to a fraction of its seats. The sentence is incorrect on its own terms, because the United States has told a federal court that employee masking "may impact business operations," and it is irrelevant to the orders at issue, because it does not mention them.
The letter's sentence comes from a paragraph about masks and one-way aisles. If the order that reached your business fixed how many people could be inside, when you could open, how many patients you could treat, who had to be tested or vaccinated, or who could be admitted, that order is not what the sentence describes. A federal court has held that changes an order forces on how you operate are a suspension of that part of the business, and the United States has told a federal court that even employee masking "may impact business operations." Find the orders that reached each part of your operation in the Library, note what each compelled, and set them beside the sentence.