In plain terms: this page tells the story of the Employee Retention Credit's governmental-orders test, from the day Congress wrote it to the day the Service closed the last unexamined claim. It establishes four things. The statute, not the Service's Notice, decides who was eligible, and the United States has said so in two federal courts. Between March 13, 2020 and September 30, 2021 every employer in the United States operated under orders limiting commerce, travel or group meetings, in every one of the six quarters the credit covers, and The COVID Project's Library holds those orders in the issuing authorities' own text. The sentence the Service's letters use, that no such orders were in effect, describes a period that did not occur. And the Service's own guidance says what this site says: when guidance and the law differ, the law controls.
Two proceedings are cited on this page in short form. The first is Stenson Tamaddon, LLC v. IRS, No. 2:24-cv-01123-SPL (D. Ariz.), a suit by an ERC advisory firm challenging Notice 2021-20, now on appeal as No. 25-4217 (9th Cir.): the United States' opposition and cross-motion for summary judgment of January 6, 2025 (ECF No. 44) is cited as "Doc. 44"; the summary-judgment order of June 20, 2025 (ECF No. 49) as "Doc. 49"; the transcript of the July 16, 2024 preliminary-injunction hearing as "Tr."; the appellant's opening brief of September 17, 2025 as "Opening Br."; and the United States' answering brief of January 30, 2026 as "Br. for Appellees." The second is Tri-State Memorial Hospital v. United States, No. 2:25-cv-0181-TOR (E.D. Wash.), a hospital's refund suit in which the court construed the statute's suspension test in its order of May 28, 2026 on the United States' motion to dismiss (ECF No. 38, cited as "Tri-State").
The clause Congress wrote
The Suspension Clause governs. Congress enacted the Employee Retention Credit in section 2301 of the CARES Act on March 27, 2020; amended and extended it through the second quarter of 2021 on December 27, 2020; re-enacted it as section 3134 of the Internal Revenue Code on March 11, 2021 for the third and fourth quarters of 2021; and on November 15, 2021 terminated the fourth quarter and left the third in place.1 The operative clause is identical in every enactment. An eligible employer is one for which "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 (for commercial, social, religious, or other purposes) due to the coronavirus disease 2019 (COVID-19)."2 This site calls that text the "Suspension Clause," the Internal Revenue Service the "Service," the Government as litigant the "United States," Notice 2021-20 the "Notice," and its own collection of instruments the "Library"; an instrument in the Library is cited by its exhibit identifier, for example Ex. TX-004.
Six calendar quarters are claimable under the clause: the second quarter of 2020 (April 1 to June 30, 2020, together with the wages paid after March 12, 2020 that the Service's own instructions assign to that quarter), the third and fourth quarters of 2020, and the first, second and third quarters of 2021, the last ending September 30, 2021.3 The clause says nothing about the source or the addressee of an order, nothing about "essential" designations, nothing about telework, nothing about a percentage. Every one of those limitations was added later, by the Service, in a document the United States has since described to two federal courts as guidance without the force of law.4 This analysis reads the clause in its own words and applies it to the public record. The Service's contrary readings are not weighed as alternatives to the statute. They are named, and they are answered.
What the orders did
The orders extended well beyond restrictions directed to the public generally. Many expressly governed the premises, personnel, hours, capacity and activities of businesses in every sector. They closed non-essential premises outright and confined the premises that remained open to fixed fractions of their capacity; they suspended elective medical, dental and veterinary procedures and reserved hospital capacity for COVID-19 patients; they prohibited or capped the gatherings on which restaurants, venues, houses of worship, schools and event businesses depend; they mandated telework and fixed the occupancy of offices; they imposed workplace infection-prevention and exposure-control requirements on every open workplace, of which the screening of employees and customers, physical distancing, face coverings, barriers, ventilation, cleaning and the exclusion of exposed workers were the elements; they placed protective equipment under federal allocation; they closed the land borders, suspended entry, quarantined travelers and governed every commute by public conveyance; they closed the courts, recorders, motor-vehicle offices and licensing boards through which commerce runs; and, in the final quarter, they conditioned employment in health care, education and public service on vaccination or testing. The nature and duration of those requirements changed over the six quarters, but their effect was neither confined to the initial shutdowns nor limited to businesses that ceased operating altogether.
Between March 13, 2020 and September 30, 2021 the operation of the trade or business of employers in every industry and every State of the United States was fully or partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, within the meaning of the Suspension Clause. That is the law of the six claimable quarters, and it is the record of them. The record is the Federal Register, the executive registers of fifty-one States and territories, the health codes of every county and city of consequence, the administrative orders of every court system and the emergency rules of every licensing board. The Library gathers those instruments, indexes them by issuer, date, quarter and the functions of a business they reached, and serves them in the issuing authority's own text. The propositions of law on which the conclusion rests are not this site's alone. The United States has told two federal courts every one of them.5
The scale of the record
The governmental response to COVID-19 was the densest body of governmental commands on commerce, travel and assembly in the nation's history, and every count of it is a floor. By May 31, 2020, the Centers for Disease Control and Prevention counted 42 States and territories that had issued mandatory stay-at-home orders reaching 2,355 of the nation's 3,233 counties, found that "most jurisdictions issued multiple orders," and measured a fall in population movement in 97.6 percent of counties.6 The Council of State Governments counted 2,065 executive orders of governors and State agencies between February 2020 and June 29, 2020, before four of the six claimable quarters had begun; forty-three governors issued stay-at-home or non-essential-closure orders, and seven did not.7 The Department of Health and Human Services' own dataset records 4,218 State and county policy-order entries between March 23, 2020 and August 31, 2021, with 1,698 start actions between March 23 and June 30, 2020 alone; its curators stopped coding in the spring of 2021, so the dataset is a floor for 2020 and no measure of 2021.8 The COVID AMP database catalogued more than 20,000 policy measures at the United States national and State level, 95 percent of them issued before November 23, 2021, and approximately 8,000 issued by United States counties.9 Thirty-nine States issued statewide face-covering and exposure-control requirements and five reinstated them after expiry; twenty-seven States and the District enacted travel restrictions; all fifty States declared emergencies; nineteen States imposed vaccination requirements on some or all State employees from August 2021.10
The Government's own agencies named the orders as the cause of what followed. The Bureau of Economic Analysis attributed the 32.9 percent annualized decline in second-quarter 2020 gross domestic product, the largest on record, to "the response to COVID-19, as 'stay-at-home' orders issued in March and April were partially lifted in some areas of the country in May and June."11 The Bureau of Labor Statistics reported that nonfarm payroll employment "fell by 20.5 million in April, and the unemployment rate rose to 14.7 percent," and found in its 2020 Business Response Survey that "19 percent of establishments (1.6 million) experienced a government-mandated closure" and "52 percent of establishments (4.4 million) told employees not to work."12 The Comptroller General wrote that "millions have lost their jobs due to stay-at-home orders and business closures aimed at 'flattening the curve.'"13 The Federal Reserve's Beige Books record that "mandated closures of retail establishments remained largely in place during most of the survey period" (May 27, 2020), that "mandated restrictions (recent and prospective)" weighed on activity (December 2, 2020), that "[r]estrictions on indoor dining" had "hit restaurants hard" (January 13, 2021), that "[s]upply-side disruptions became more widespread" (July 14, 2021), and that the September 2021 deceleration reflected "a pullback in dining out, travel, and tourism in most Districts" and, in some, "international travel restrictions" (September 8, 2021).14 The Congressional Research Service wrote that "lockdown orders were issued in many parts of the country and travel restrictions were put in place."15 Every public school building in the country was closed by March 25, 2020, and the closures reached at least 55.1 million students in 124,000 schools.16 TSA checkpoint throughput fell from 2,353,150 on March 1, 2020 to 113,147 on April 14, 2020, a decline of 95.2 percent.17
The Library indexes more than twelve thousand instruments graded verified, the great majority read in the issuing authority's own text. That figure is the number of instruments The COVID Project has retrieved and indexed. It is not, and is not offered as, a count of the orders that reached any employer or of the orders issued nationally, which the sources above place in the tens of thousands.18 The position that few orders existed is not a close call on a contested record; it cannot be squared with the Government's own datasets.
Six quarters, quarter by quarter
The orders did not end with the spring of 2020. They changed shape in every quarter, and in every quarter they limited commerce, travel and group meetings in terms. What follows states the national finding for each quarter in the statute's words; the six quarter pages carry the instruments jurisdiction by jurisdiction.
The second quarter of 2020
During the calendar quarter beginning April 1, 2020 and ending June 30, 2020, with the wages paid after March 12, 2020 that the Service's own instructions assign to that quarter, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the stay-at-home, closure, gathering, school-closure, elective-procedure and telework orders of every State and the District, the county and city shelter orders of the largest metropolitan areas, and the federal leave, allocation, entry, border, sailing and court instruments, caused a temporary termination and then interruption of a more than nominal portion of the operations of employers in every industry throughout the United States. Between March 12 and April 6, 2020 every State and the District issued an order limiting commerce, travel or group meetings due to COVID-19; by April 7, 2020 forty-two States and territories had ordered residents to stay at home.19
The third quarter of 2020
During the third quarter of 2020, the reopening orders' capacity, spacing, hours, protocol and masking and exposure-control conditions on every reopened premises, the July re-closures of bars, indoor dining, gyms and indoor worship in the Sun Belt and on the West Coast, the traveler quarantines of eighteen States, the District and Chicago, the health-care and residential-care conditions and the federal entry, border, leave and eviction instruments caused a temporary interruption and, for the re-closed functions, termination of a more than nominal portion of those operations. On July 1, 2020 capacity, masking, exposure-control, gathering and quarantine orders were in force in every State. On October 1, 2020, by the Kaiser Family Foundation's count, eighteen jurisdictions were imposing new restrictions, bars were newly closed in nine and under new limits in seven, and thirty-three jurisdictions had statewide public masking and exposure-control orders.20
The fourth quarter of 2020
During the fourth quarter of 2020, the winter re-tightening orders of every region, which re-closed indoor dining, indoor recreation and offices in more than thirty jurisdictions, imposed curfews, cut gatherings to a household and renewed telework mandates in terms, together with the federal instruments, caused a temporary termination and interruption of a more than nominal portion of those operations a second time. Every State re-tightened between October 6 and December 26, 2020, and the pattern is uniform across regions: a second closure of indoor dining and indoor recreation (Washington, Oregon, Illinois, Michigan and Minnesota in the week of November 18 to 20; Pennsylvania December 12; California's Regional Stay at Home Order from December 3); early closing or curfews on food, drink and recreation in more than a dozen States; occupancy rolled back to 25 percent or less; gatherings cut to ten or a single household in more than thirty States; telework re-imposed in terms ("Unless impossible, all businesses must conduct their operations remotely," Pennsylvania; "employees who are able to work remotely are required to do so," Rhode Island); and universal or strengthened masking and exposure-control orders in Hawaii, Utah, Montana, Wyoming, Iowa, North Dakota, Kansas, New Hampshire, Pennsylvania, California, Virginia, West Virginia and Delaware. On January 4, 2021, four jurisdictions had new stay-at-home orders in place, eighteen had new business closures or limits, thirty-four had gathering caps of fifty or fewer, bars were closed in sixteen, and forty jurisdictions had statewide public masking and exposure-control orders.21
The first quarter of 2021
During the first quarter of 2021, the winter orders in force on January 1 and their stepped successors in force on March 31, the rebuilt federal layer of January and February 2021 (the federal workplace order, the 25 percent occupancy ceiling, the conveyance mask order, the inbound-testing order and Proclamation 10143), the court orders and the State workplace standards caused a temporary interruption and, in the named regions, termination of a more than nominal portion of those operations. Capacity orders remained in force in twenty-five jurisdictions on March 31, 2021, with binding conditions short of a cap in four more; on April 5, 2021, thirty-one jurisdictions had statewide face-covering and exposure-control requirements and forty-nine had emergency declarations in force.22 Congress re-enacted the Suspension Clause for the third and fourth quarters of 2021 on March 11, 2021, in the middle of this quarter, with those orders in force.23
The second quarter of 2021
During the second quarter of 2021, the capacity, gathering, masking, exposure-control and telework orders in force on April 1 to their stepped expiry between April 4 and July 1, 2021, the State workplace standards, the Healthcare Emergency Temporary Standard from June 21, 2021, and the federal conveyance, entry, border, cruise and eviction orders caused a temporary interruption of a more than nominal portion of those operations. The last statewide caps ended on June 30, 2021 in Washington and Oregon and on July 1, 2021 in New Mexico, and never before September 30, 2021 in Hawaii.24 In every State the instrument that ended general restrictions kept named instruments alive, and the "end of general restrictions" was in every State the substitution of one set of orders for another, never the absence of orders.
The third quarter of 2021
During the third quarter of 2021, the federal conveyance, entry, border, testing, cruise, health-care, workplace, contractor, court and eviction orders in force on every day, the State emergencies and the instruments they kept alive, the indoor masking and exposure-control orders of eight statewide jurisdictions (seven reinstated between July 30 and August 30, 2021, and Hawaii's in force throughout), the reinstatements of more than thirty metropolitan jurisdictions from July 17, 2021 onward, the vaccination-proof conditions of entry in New York City, San Francisco, New Orleans and Honolulu, the school and child-care masking and exposure-control orders of eighteen States and the District, the worker vaccination mandates of the most populous States with September deadlines, the State workplace standards, the court orders of the United States and at least twenty-nine States, and the continuing suspension the preceding five quarters' orders compelled, caused a temporary delay, interruption and, for the functions and persons those orders named, termination of a more than nominal portion of the operations of employers in every industry throughout the United States. This quarter, the quarter the Service's letters most often describe as one without orders, receives its own inventory below.
The federal layer never lapsed
The federal layer never lapsed and never reopened in the six quarters; it changed shape. Three groups of federal instruments are kept distinct throughout this site: orders limiting commerce, travel or group meetings in terms; rules and directives that governed the manner of operation of a class of employers, or of the federal government as employer, landlord, customer and adjudicator; and the predicates (the national emergency, the Stafford Act declarations, the public health emergency), which are never described as orders and are stated only as the record that the federal government treated the emergency as continuing without interruption on every day of the six quarters.25
The run-up and the second quarter of 2020
The Secretary of Health and Human Services determined on January 31, 2020 that a public health emergency "exists and has existed since January 27, 2020, nationwide"; Proclamation 9984 suspended entry from China effective February 2, 2020, Proclamation 9992 added Iran on March 2, Proclamation 9993 the Schengen Area effective March 13 and Proclamation 9996 the United Kingdom and Ireland effective March 16.26 On March 13 the President proclaimed the national emergency; the Department of Defense stopped all movement of its personnel effective March 16; CDC issued the No Sail Order on March 14.27 The Office of Management and Budget's memoranda of March 12, 15 and 17 moved the executive branch to maximum telework, the last directing that "the Government must immediately adjust operations and services to minimize face-to-face interactions."28 The Families First Coronavirus Response Act was enacted March 18; the President delegated Defense Production Act authority over "all health and medical resources" on March 18, hoarding-prevention authority on March 23 and further authority on March 27; HHS designated fifteen categories of respirators, masks, gloves, gowns, ventilators and disinfectants as "scarce materials" on March 25, making their accumulation above reasonable demand a federal crime.29 CDC suspended the introduction of covered persons at the land borders at 11:59 p.m. on March 20, and DHS closed the Canadian and Mexican land borders to all but "essential travel" at the same hour; the State Department cancelled every routine visa appointment in the world as of March 20; USCIS closed its offices to the public from March 18; FHFA, HUD and VA suspended foreclosures and evictions on March 18, and the CARES Act of March 27 made the sixty-day foreclosure moratorium mandatory and added a 120-day eviction moratorium.30 The Judicial Conference found on March 29 that "emergency conditions ... will materially affect the functioning of the federal courts generally"; jury trials were suspended in the Northern District of Illinois (March 12), the Northern District of California (March 16), the District of Maryland (March 20) and the Central District of California, whose courthouses closed to the public on March 23.31 CMS closed nursing homes to "all visitors and non-essential healthcare personnel" on March 13, told hospitals to screen every entrant and recommended on March 18 that non-essential procedures be postponed, a recommendation every State's elective-procedure order then made binding.32 Wages paid after March 12, 2020 belong to the second quarter of 2020, and every instrument in this paragraph belongs to that quarter's record. From April 1 the FFCRA leave mandate was operational: every employer under 500 employees "shall provide ... paid sick time" to any employee unable to work because "[t]he employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19" or because "the school or place of care" of the employee's child "has been closed," and the implementing rule defined "quarantine or isolation order" to include stay-at-home orders.33 FEMA forbade the export of five categories of protective equipment without federal allocation from April 7; the President suspended the entry of most new immigrants from April 23, made meat and poultry processing a Defense Production Act priority on April 28 after CDC had counted 4,913 infected workers in 115 plants in 19 States, added Brazil to the entry suspensions effective May 26 and suspended the entry of H-1B, H-2B, L and J workers from June 24; DHS renewed the land-border closure on April 22, May 22 and June 24; the federal workforce stayed in "Maximum Telework Flexibility" under a directive of April 20 that required screening of "Federal employees, contractors and visitors"; FHFA, HUD and VA extended their moratoria to August 31; and CMS made every nursing home a weekly federal reporter of cases, deaths, protective equipment and staffing from May 8.34
The third and fourth quarters of 2020
Nothing in the federal travel or workplace layer changed in the third quarter, and the finance and health layers tightened. The entry proclamations continued and DHS renewed the border closure July 22, August 21 and September 23; the federal offices did not reopen; the FFCRA mandate ran the whole quarter; FEMA extended the protective-equipment export rule to December 31 and HHS extended the scarce-materials designation on July 30; CDC ordered on September 1, effective September 4, that a landlord "shall not evict any covered person from any residential property" in any jurisdiction without an equal moratorium, on pain of criminal fines up to $500,000 per event; and CMS required every nursing home from September 2 to "test residents and facility staff, including individuals providing services under arrangement and volunteers," with staff testing monthly, weekly or twice weekly by county positivity.35 In the fourth quarter the No Sail Order gave way on October 30 to the Framework for Conditional Sailing Order, which kept passenger cruising from United States ports closed pending crew testing, simulated voyages and certification; DHS renewed the border closure October 22, November 23 and December 22; the winter resurgence re-tightened the federal courts (the Northern District of Illinois suspended all jury trials "until further order" on November 13; the District of New Jersey suspended in-person proceedings November 25 through January 31, 2021); the housing agencies' moratoria were extended into 2021 and Congress extended the CDC eviction moratorium to January 31, 2021; CDC's first pre-departure testing order took effect December 28; Proclamation 10131 carried the immigrant and temporary-worker suspensions to March 31, 2021; the FFCRA mandate expired December 31, 2020.36
The first and second quarters of 2021
The new Administration continued every restriction and added the transport layer. Proclamation 10143 (January 25) continued the European, British, Irish and Brazilian suspensions without interruption and added South Africa; Executive Order 13991 (January 20) required masking, exposure controls and distancing of every person "in Federal buildings or on Federal lands," and OMB's memorandum of January 24 provided that "[n]o Federal workplace should operate above 25% of normal occupancy standards at any given time during periods of high community prevalence or transmission"; Executive Order 13998 directed airborne-transmission controls in airports, aircraft, trains, vessels, buses and "all forms of public transportation"; CDC's global pre-departure testing order took effect January 26; the CDC conveyance mask order took effect at 11:59 p.m. on February 1, 2021 "until further notice," and TSA's security directives required every transit agency, railroad, bus company, airline and airport from February 1 to give notice that "Federal law requires wearing a mask," to refuse boarding and to remove violators; the Federal Railroad Administration's Emergency Order No. 32 (March 1) imposed the requirement on every railroad with civil penalties up to $118,826 a day; DHS renewed the border closure January 19, February 23 and March 19; CDC extended the eviction moratorium to March 31 and then June 30; OSHA launched its National Emphasis Program March 12; and Congress re-enacted the Suspension Clause on March 11.37 In the second quarter the United States was adding countries to the entry suspensions, not lifting them: Proclamation 10199 suspended entry from India effective May 4; DHS renewed the border closure April 22, May 24 and June 23; TSA extended the surface directive through September 13, 2021, applied "including those already vaccinated"; CMS required screening of all who enter a nursing home and "denial of entry of those with signs or symptoms or those who have had close contact with someone with COVID-19 infection in the prior 14 days (regardless of the visitor's vaccination status)," and from May 21 required every nursing home to educate, offer and report vaccination for residents and all regular on-site staff and contractors; OSHA's COVID-19 Healthcare Emergency Temporary Standard was published and effective June 21, 2021, applying "to all settings where any employee provides healthcare services or healthcare support services," with compliance due July 6 and July 21; OMB's memorandum of June 10 rescinded the 25 percent ceiling on paper while requiring reentry plans by July 19 and thirty days' notice to employees before any required return; FHFA, HUD, VA and USDA extended the moratoria to July 31; CDC extended its eviction moratorium June 24 to July 31; the FEMA export rule expired June 30, 2021.38
The third quarter of 2021
The federal layer tightened. Every instrument named in the preceding paragraph other than the FEMA export rule was in force on July 1, 2021. Inside the quarter: OSHA revised its National Emphasis Program July 7; HHS extended the scarce-materials designation July 7 to November 15, 2021; the public health emergency was renewed effective July 20 "[a]s a result of the continued consequences of the ... pandemic"; DHS renewed the land-border prohibition July 22, August 23 and September 22; the Safer Federal Workforce Task Force reinstated masking and exposure controls in every federal building for all persons regardless of vaccination status in areas of substantial or high transmission on July 27 to 29, required employees and onsite contractors to sign an attestation of their vaccination status, and required agency-head approval for any federally hosted "in-person meeting, conference, or event that will be attended by more than 50 participants"; CDC replaced the Title 42 order without interruption on August 2; CDC ordered on August 3 that no landlord "shall ... evict any covered person from any residential property in any county or U.S. territory while the county or territory is experiencing substantial or high levels of community transmission," until that order was vacated August 26; on July 30 FHFA, HUD, VA and USDA barred foreclosure-related evictions "[t]hrough September 30, 2021"; TSA issued the successor surface directive on August 20, effective September 14, 2021 to January 18, 2022; the District of Arizona re-tightened its own workplace effective September 7 because "the State of Arizona is experiencing another spike of COVID-transmission due to the Delta variant"; the District of New Jersey required masking and exposure controls "regardless of vaccination status" on September 3 and proof of vaccination or a negative test of visitors on September 13; the President signed Executive Orders 14042 and 14043 on September 9, reciting that the public health emergency and the national emergency remain in effect; the Northern District of Illinois required vaccination or testing for courtroom participation from September 20; the Task Force issued its contractor guidance September 24 and OMB published its determination that compliance "will improve economy and efficiency by reducing absenteeism and decreasing labor costs for contractors and subcontractors"; and the Department of Commerce solicited data on "the current semiconductor shortage" on September 24.39 A Government that was tightening its own workplace rules, renewing its border prohibitions, replacing its Title 42 order, extending its eviction moratoria and soliciting evidence of a national input shortage in July, August and September 2021 cannot maintain that no orders limiting commerce, travel or group meetings were in effect in that quarter. The position cannot be squared with the Federal Register.
The third quarter of 2021: the national inventory
The third quarter of 2021 is the quarter the Service's letters most often describe as one without orders, and it is the quarter in which the record is easiest to state, because a federal order governed every commute, every entry and every health-care workplace in the country on every day. On every day from July 1 to September 30, 2021 the United States kept in force the CDC's conveyance mask order, 86 Fed. Reg. 8025, an airborne-transmission control enforced by criminal penalty on every bus, train, aircraft, ferry and transportation hub in the country and imposing on every operator the duties of notice, refusal of boarding and removal;40 the Transportation Security Administration's security directives requiring every operator to refuse boarding to the unmasked;41 Proclamations 9984, 9992, 10143 and 10199 suspending the entry of noncitizens from China, Iran, the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa and India;42 the Department of Homeland Security's monthly prohibitions of non-essential land travel from Canada and Mexico, renewed on June 23, July 22, August 23 and September 22, 2021;43 the Occupational Safety and Health Administration's COVID-19 Healthcare Emergency Temporary Standard, 29 C.F.R. § 1910.502, binding "all settings where any employee provides healthcare services or healthcare support services";44 and the coordinated eviction moratoria of the Federal Housing Finance Agency, the Department of Housing and Urban Development, the Department of Veterans Affairs and the Department of Agriculture, which expired on the quarter's last day.45 The Government fixed the end of the entry suspensions from its own hand: Proclamation 10294 of October 25, 2021 revoked them effective 12:01 a.m. on November 8, 2021, five weeks after the quarter closed.46
In the States, twenty-five emergency declarations and eleven statewide face-covering requirements, each an airborne-transmission control on every indoor workplace within its reach, were in force on September 21, 2021 by the Kaiser Family Foundation's count.47 Nevada, the District of Columbia, Louisiana, Oregon, New Mexico, Washington and Illinois reinstated universal indoor masking and exposure-control orders between July 30 and August 30, 2021, and Hawaii's statewide requirement of November 16, 2020 never lapsed.48 Eighteen States and the District ordered masking in every school, and most of them in every child-care facility, for the 2021-22 year.49 Worker vaccination or vaccination-or-testing mandates carried deadlines inside the quarter in California, New York, New Jersey, Connecticut, Illinois, Maryland, New Mexico, North Carolina, Virginia, Hawaii, Delaware and the District, and October deadlines in Washington, Oregon, Rhode Island, Maine, Massachusetts, Colorado and Kentucky.50 The metropolitan layer, where the third quarter is thickest, added the indoor masking and exposure-control orders of Los Angeles County (effective July 17, the first Delta-wave reinstatement in the country), St. Louis City and County (July 26), Sacramento (July 30), New Orleans (July 31), Kansas City (August 2), the eight Bay Area jurisdictions (August 3), Prince George's (August 5) and Montgomery (August 7) Counties, Baltimore (August 9), Dallas County (August 11), Philadelphia (August 12), Chicago (August 20), Cook County (August 23), Boston (August 27), King County (September 7) and Columbus (September 10), among more than thirty; the vaccination-proof conditions of entry of New Orleans (August 16), New York City (August 17), San Francisco (August 20) and Honolulu (September 13); and the court orders of the United States and at least twenty-nine States.51
Not in force in the third quarter of 2021, and named here only so that the reader knows the proof rests on none of them: the FFCRA leave mandate (expired December 31, 2020); the FEMA export rule (June 30, 2021); the No Sail Orders (replaced October 30, 2020); the immigrant and temporary-worker suspensions of Proclamations 10014, 10052 and 10131 (February 24 and March 31, 2021); the 2020 federal workplace directives and the 25 percent occupancy cap (June 10, 2021); the spring and summer 2020 and winter 2020-21 traveler quarantines other than Hawaii's, Kansas's and Rhode Island's; every statewide stay-at-home order, non-essential-business closure, restaurant and bar closure and general capacity cap outside Hawaii and New Mexico's July 1 lifting; the statewide masking and exposure-control orders of the forty jurisdictions that had ended them before July 1 and had not reinstated them; and the 2020 and early-2021 court closures that had been superseded.52 This site never says that an expired order suspended anyone by its own force.
Beneath the orders, the standing law
Beneath every one of those orders, on every day of the six quarters, lay the standing law of every State and of the United States: the communicable-disease control acts that commanded each person to prevent and control the disease, the emergency acts that made disobedience of the orders an offense, the workplace-safety statutes and the general duty clause that commanded every employer to furnish a safe and healthful workplace, and the liability shields that protected only the business that complied with governmental standards, guidance and protocols. A statute that commands conduct is an order from an appropriate governmental authority on the statute's own terms. Nothing an employer did to comply with those commands was voluntary, and the Library's standing-duties collection sets the commands out State by State.54
What changed on March 1, 2021
The rules the Service now administers as eligibility requirements began as web-page FAQs that the Service itself said "may not be relied upon as legal authority" and "cannot be used to support a legal argument in a court case." They were posted April 29, 2020, revised June 19, 2020, and rewritten, in the directions that narrow the statute, on March 1, 2021, when the Notice was released, after every employer's 2020 quarters had closed. The Notice "incorporates the information provided in the FAQs" and claims nothing more for itself.55
As posted on April 29, 2020, FAQ 28 defined governmental orders as those that limit commerce, travel or group meetings "in a manner that affects an employer's operation of its trade or business, including orders that limit hours of operation," said an order qualifies "without regard to the level of enforcement," and described a governor's closure order as "entitling employers with non-essential businesses to claim the Employee Retention Credit." FAQ 30 answered the question whether a business that remained open under an essential designation was excluded with a flat "No." FAQ 32 confined the customer exclusion to "an essential business that is not required to close its physical locations or otherwise suspend its operations" and to a suspension claimed "for the sole reason" of the customers' stay-at-home order. FAQ 34 answered "Yes" without qualification: a workplace closed "for certain purposes, but ... open for other purposes ... would be considered to be partially suspended." No FAQ mentioned "nominal" or any percentage.56 On June 19, 2020, FAQ 30 acquired the "more than a nominal portion" sentence and FAQ 34 added "more than a nominal effect" only for the case where "all of an employer's business operations may continue, even if subject to modification." Still no percentage anywhere.57
On March 1, 2021 the Notice (i) changed "affects an employer's operation" to "relate to the suspension of an employer's operation" and removed "including orders that limit hours of operation" from the definition (Q&A-10); (ii) added the "more than a nominal portion" qualifier to the closed-purposes rule itself (Q&A-17) and introduced the two 10 percent deeming rules (Q&A-11, Q&A-18); (iii) extended the customer exclusion beyond the class FAQ 32 had named to every employer, and from stay-at-home orders to any "reduction in demand" (Q&A-13); (iv) added the four comparable-operations factors (Q&A-16); and (v) added the categorical sentence on masks and spaced aisles (Q&A-18). The Service's release described the Notice as "similar to the information in the employee retention credit FAQs, but includes clarifications."58 The direction of every substantive change is toward the positions the United States would later take in litigation and away from the statute; none of the changes was made by regulation; and the United States has represented in two courts that none carries the force of law. The Service's current doctrine on FAQs states the rule this site applies: they "will not be relied on or used by the IRS to resolve a case," and "if a FAQ turns out to be an inaccurate statement of the law as applied to a particular taxpayer's case, the law will control the taxpayer's tax liability."59
How the Service administered the credit, 2023-2026
The Service's administration of the credit after 2023 followed a course the public record fixes date by date. On September 14, 2023 it announced an "immediate moratorium through at least the end of the year on processing new claims," moved existing claims "from a standard processing goal of 90 days to 180 days," and stated the eligibility rule as the statute for "2020 or the first three quarters of 2021"; the same day its FAQ page acquired the sentence "The IRS considers 'more than nominal' to be at least 10%," a figure that appears nowhere in the statute and that the United States would tell a federal court sixteen months later "isn't an eligibility requirement."60 On June 20, 2024 it reported that its review of more than one million pre-moratorium claims had placed "between 10% and 20%" in "the highest-risk group," found "between 60% and 70%" to show "an unacceptable level of risk," and found "between 10% and 20%" to show "a low risk," while stating that "[e]ligibility depends on specific facts and circumstances."61 On August 8, 2024 it announced 28,000 "disallowance letters" to claims that "showed a high risk of being incorrect," acknowledged that some "inadvertently omitted a paragraph highlighting the process for filing an appeal," and wrote that "ERC eligibility can vary from one tax period to another if, for example, government orders were no longer in place."62 Thirteen days later the National Taxpayer Advocate wrote that "the IRS did not subject disallowed ERC claims to an examination; rather, the IRS conducted a risk-scoring analytic process," and that some letters carried "incorrect explanations of the basis on which the IRS denied the claim."63 In April 2026 the National Taxpayer Advocate described the 2024 letters again as "based on the results of risk filter analyses rather than a prior examination."64
The Service's last public processing update for twenty months came on October 10, 2024 (about 400,000 claims in processing, "about $10 billion of eligible claims").65 The claim window for the 2021 quarters closed April 15, 2025; by May 2025 more than 597,000 claims were unprocessed, and letters on about 84,000 returns were "partially or fully disallowing the claims," many without a clear statement of why.66 On July 4, 2025 Congress barred allowance, after that date, of third- and fourth-quarter 2021 credits claimed after January 31, 2024; the Service's own fact sheet states that "only new ERC claims filed after January 31, 2024, are limited."67 By December 31, 2025, according to the Government Accountability Office's account of what Service officials told it, the Service "closed all remaining ERC claims, aside from those under examination or appeal," leaving "about 41,000 claims" in examination or appeals; no Service release announces the closure.68 On February 10, 2026 the Government Accountability Office reported that nearly 5 million claims had been processed and about $283 billion paid as of June 2025, and that the "IRS did not complete an improper payment estimate for ERC, as required in law."69 On April 27, 2026 the Service introduced Notice CP320B and a streamlined Form 907 extension for claimants who had responded to a Letter 105C and had six months or less left in the two-year period of section 6532(a) in which to sue; the average time from appeal request to resolution in fiscal 2025 was 337 days.70 As of the week ending August 29, 2026 the Service reported "approximately 14,900 remaining ERC claims in various stages ... under review (1,650), pending payment or disallowance (2,950), under audit (3,600), awaiting review of disallowance responses (5,300) and, finally, with the Independent Office of Appeals (1,400)," and identified "Notice 2021-20 Sections III.C. and III.D., Questions and Answers 10 through 22" as its definitions of the suspension test.71
| Date | What the Service did | Source |
|---|
| June 30, 2023 | Chief Counsel memorandum AM 2023-005 on supply-chain suspensions (released July 21, 2023) | AM 2023-005 |
| Sept. 14, 2023 | Moratorium on processing new claims; processing goal moved from 90 to 180 days; the sentence "The IRS considers 'more than nominal' to be at least 10%" added to the FAQ page | IR-2023-169; FAQ Q5 (Ex. GOV-003) |
| Oct. 18, 2023 | Chief Counsel memorandum AM 2023-007: an employer must "substantiate ... a reduction ... of not less than 10 percent to fall within the provisions of Notice 2021-20" | AM 2023-007, at 12 (Ex. GOV-004) |
| Oct. 19, 2023 | Withdrawal process for unpaid claims, "treated as if they were never filed" | IR-2023-193 |
| Dec. 6, 2023 | More than 20,000 Letters 105C to entities that did not exist or paid no wages | IR-2023-230 |
| Dec. 21, 2023 | First Voluntary Disclosure Program: 80 percent repayment through March 22, 2024; participants stipulate ineligibility and name their advisors | IR-2023-247; Announcement 2024-3 |
| June 20, 2024 | More than one million pre-moratorium claims sorted into three groups by "risk"; moratorium kept in place; inventory 1.4 million | IR-2024-169 |
| Aug. 8, 2024 | 28,000 "disallowance letters"; processing of claims filed Sept. 14, 2023 to Jan. 31, 2024 begins | IR-2024-203 |
| Aug. 15, 2024 | Second Voluntary Disclosure Program (85 percent; 2021 periods; through Nov. 22, 2024); up to 30,000 recapture letters | IR-2024-212; Announcement 2024-30 |
| Aug. 21, 2024 | National Taxpayer Advocate: the 2024 letters followed "a risk-scoring analytic process," not an examination | NTA blog |
| Oct. 10, 2024 | About 400,000 claims in processing; the last public processing update until June 2026 | IR-2024-263; GAO-26-107456 |
| Apr. 15, 2025 | Claim window for the 2021 quarters closes | Instructions for Form 941-X (Rev. Apr. 2026) |
| July 4, 2025 | Pub. L. 119-21, § 70605: no allowance after this date of third- and fourth-quarter 2021 credits claimed after Jan. 31, 2024 | Pub. L. 119-21; FS-2025-07 |
| Dec. 31, 2025 | All claims not under examination or appeal closed, per Service officials; about 41,000 remain | GAO-26-107456, at 27, 30, 49 |
| Feb. 10, 2026 | GAO: nearly 5 million claims processed and about $283 billion paid as of June 2025; no improper-payment estimate completed | GAO-26-107456 |
| Apr. 27, 2026 | Notice CP320B and the Form 907 streamlined extension of the section 6532(a) period | NTA blog; IRS CP320B page |
| Aug. 29, 2026 | About 14,900 claims remaining; the Service names Notice 2021-20 Q&A-10 to Q&A-22 as its suspension-test definitions | IRS inventory page |
The sentence the letters use
The Service's letters deciding suspension-prong claims against employers rest on a single sentence. It is a statement of fact about the public record of the United States, and it is measured against that record.72
Our records indicate there were no government orders related to COVID-19 in effect during the quarter(s) you claimed ERC which could have fully or partially suspended your trade or business.
Between March 12 and April 6, 2020 every State and the District issued an order limiting commerce, travel or group meetings due to COVID-19; by April 7, 2020 forty-two States and territories had ordered residents to stay at home. On July 1, 2020 capacity, masking, exposure-control, gathering and quarantine orders were in force in every State. On January 1, 2021 winter closure or capacity orders were in force in more than thirty jurisdictions, and capacity orders remained in twenty-five on March 31, 2021. On April 1, 2021 those orders were in force, and the last statewide caps ended June 30, 2021 in Washington and Oregon and July 1, 2021 in New Mexico. On every day of the third quarter of 2021 the federal conveyance order and its security directives, the entry proclamations and the monthly land-border prohibitions, the Healthcare Emergency Temporary Standard, the federal workforce and contractor orders, the federal eviction moratoria, the statewide indoor masking and exposure-control orders of eight jurisdictions, the health-care-worker vaccination orders of sixteen States and the District, the school orders of eighteen States, the vaccination-proof orders of four cities, the orders of more than thirty metropolitan health authorities and the court orders of the United States and at least twenty-nine States were in force.73
The sentence asserts that none of those instruments existed. It is factually incorrect. For the six quarters it describes a period that did not occur. The Service does not say what record it consulted before writing it; the United States told the District Court that the Service was "taking a closer look at every single claim" and "doing more follow-up ... about ... what sort of state, local, or government orders they're relying upon," and the record is the orders themselves, published by the authorities that issued them and subject to judicial notice.74 A letter that reports the absence of instruments the Federal Register, the State registers and the county codes record by number, date and page is not a finding about the taxpayer. It is a misstatement about the public record, and the record corrects it. The fourteen-grounds pages answer this sentence and the thirteen others the letters use, one by one.
What the United States told two federal courts
The United States has told two federal courts what the Suspension Clause means and what the Notice is, and every one of those statements is a proposition this site applies. In Stenson Tamaddon, LLC v. IRS, an ERC advisory firm's challenge to the Notice under the Administrative Procedure Act, the United States represented, and the District Court held, that the Notice "lacks the force of law," that "[w]hether Notice 2021-20 exists or not, the statute will control whether a refund is warranted," and that the Notice "carries no force of law and is entitled to no deference." It represented, and the District Court agreed, that the ten percent figure "isn't an eligibility requirement" but "[e]ffectively ... a safe harbor," and "not an exclusionary cut-off point." In Tri-State Memorial Hospital v. United States, a hospital's refund suit for the first three quarters of 2021, it agreed that "due to" means "because of" and that a "suspension" is "[t]he act of temporarily delaying, interrupting, or terminating something," and the court held that "due to" requires but-for causation and refused every gloss the United States asked it to add ("significant," "closure," a ten percent threshold, a proximate-cause test), holding that the United States' reading "improperly adds words into the statute."75
The record
The plaintiff sued on May 14, 2024, challenging the Notice and the moratorium on processing new claims; the District Court heard the preliminary-injunction motion on July 16, 2024; the United States cross-moved for summary judgment on January 6, 2025 (Doc. 44); the District Court granted judgment to the United States on June 20, 2025 (Doc. 49) on the single ground that the Notice is interpretive guidance without the force of law, calling the case "a close call"; the plaintiff appealed (Opening Br., September 17, 2025); the United States answered (Br. for Appellees, January 30, 2026); and argument is calendared for October 26, 2026 in Phoenix.76 In Tri-State the United States moved to dismiss on January 20, 2026, and on May 28, 2026 the court refused, deciding the meaning of "partially suspended" and "due to" on the United States' own agreed definitions.77 The District Court's judgment adjudicated no employer's claim; the plaintiff took no position on whether the Service must agree with any refund request. The positions the United States took to obtain that judgment were, however, positions about how the Service decides every claim, and the District Court accepted them as the reason the Notice binds no one.78
The Notice has no force of law, and it binds the Service
The Notice itself does not require [the plaintiff] or its clients to do anything or prevent them from doing anything.
Doc. 44 at 19
Whether Notice 2021-20 exists or not, the statute will control whether a refund is warranted.
Doc. 44 at 24
There is no question of deference here.
Br. for Appellees at 58
The United States wrote that the Notice "is merely guidance" and "lacks the force of law"; that "[i]f Notice 2021-20 did not exist, the IRS would still have a duty to approve or deny a claim for refund under I.R.C. § 3134 using its own interpretation of its terms and, in any refund suit, the courts would still determine whether the IRS's interpretation was correct or not"; and, to the Ninth Circuit, that the Notice is "nonbinding guidance" without "the force of law in this respect (or any other)." The District Court so held: "a practical binding effect is not equivalent to a legally binding effect," and "the Notice carries no force of law and is entitled to no deference."79 Every Notice gloss that narrows the Suspension Clause therefore has no force of law and cannot be the rule of decision against any employer; where a gloss conflicts with the text, the text governs. The Service's letters and Chief Counsel memoranda state that "Notice 2021-20 governs the ERC for all periods"; the United States told two federal courts the opposite.80 And the Notice binds the Service. The United States told the Ninth Circuit that rules, "though they can be either interpretive or legislative," are "binding on the agency," and the Service's own directive provides that it "is bound by the substantive or procedural guidance provided in a notice ... to the same extent as a revenue ruling," so that its counsel "may not ... take a position that is less favorable to a taxpayer in a particular case than the position set forth in a publication." Where the Notice's own words help the employer (Q&A-10's list of orders, including stay-at-home orders and hours and occupancy limits; Q&A-12's supplier rule; Q&A-15; Q&A-17; Q&A-22), the Service is bound by them.81
Rather than setting a threshold or a requirement, what the IRS has explained is that in its interpretation, partial suspension means something between a full suspension and no suspension. ... The 10 percent is not determinative for whether an employer has been partially suspended. ... Effectively, this is a safe harbor ... Properly understood, it isn't an eligibility requirement. ... [I]t does not impose a threshold or place a limitation on receiving the credit.
Doc. 44 at 14
The United States wrote that "the IRS did not say that a taxpayer cannot qualify for the ERC if they have been impacted less than 10 percent," and the District Court adopted the sentence and held the figure "subject to rebuttal." It wrote that the line "exists only as a safe harbor," and the District Court held that it "is not an exclusionary cut-off point." To the Ninth Circuit it wrote that the provision states "sufficient—though not necessary—conditions," is "a quintessential safe harbor," is "a safe harbor rather than a hard floor," and that reading it as a floor "erroneously swaps an 'if' with an 'only if.'"82 In Tri-State the United States nonetheless asked a second federal court to dismiss a complaint that did not plead the figure; the court refused, holding that the Notice "provides a method for the test to be met not as a requirement to meet the test."83 Against those representations stand the Service's own instruments: a Chief Counsel memorandum of October 18, 2023 requiring the employer to "substantiate that the modifications resulted in a reduction ... of not less than 10 percent to fall within the provisions of Notice 2021-20"; a public FAQ page stating that "[t]he IRS considers 'more than nominal' to be at least 10% of your business"; Forms 886-A deciding claims because the employer "did not substantiate how ... modifications resulted in ... [a] reduction ... of not less than 10 percent"; and a record in which the United States "has identified no instance where a claim was approved below the 10 percent cutoff."84 A number that by the United States' own account "isn't an eligibility requirement" cannot be the ground on which any employer's claim is decided. The position is not a close call on a contested record; it is wrong, and the United States has said so in two courts.
Orders, from any authority, and "due to"
[T]he Notice explains that a business may be suspended 'due to' a government order addressing a third party (such as an order that suspends the operations of a supplier of the business).
Br. for Appellees at 41
The United States told the District Court that the qualifying instruments are "orders, proclamations, or decrees from the Federal government or any State or local government" that limited "commerce, travel, or group meetings"; 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"; and that an employer is partially suspended "if it was required to suspend certain operations for certain purposes" even where comparable operations continue.85 It told the Ninth Circuit that the supplier rule "never even mentions a 'physical[ ] clos[ure]' order against the supplier."86 In Tri-State it agreed that "the plain meaning of 'due to' is 'because of,'" and the court held that "due to" requires "but-for" causation and that the United States' "proximate, independent and sufficient cause" formulation "improperly adds words into the statute."87 Three rules follow, and this site applies them without qualification. First, the statute says nothing about the source, addressee or subject of the order: a stay-at-home order, a gathering cap, a school closure, a travel quarantine, a telework mandate and an order on a supplier, a customer, a venue or a court are each an order "limiting commerce, travel, or group meetings." A reading under which an order addressed to the public is not such an order is a reading Congress did not write and the United States has disclaimed, because the only document that carries it "lacks the force of law." Second, "appropriate" means, as the District Court read it, "fitting": the authority with power over the commerce, travel or meeting it limited.88 Third, causation is but-for. Where an order compelled a change in how a function of a business operated, the operation of that function was suspended in part because of the order; but for the order, no law required the change.
"Partially suspended" as Tri-State fixed it
In Tri-State the United States agreed that "suspension" means "[t]he act of temporarily delaying, interrupting, or terminating something," and "[n]either party claim[ed] that any part of the statute is ambiguous." The court held: "a 'partial suspension' is a temporary delay, interruption, or termination of a portion an employer's business. The language is plain." The United States then asked the court to read "significant" and "closure" into the clause and to treat the ten percent figure as a pleading requirement; the court refused: "Defendant attempts to conflate 'more than nominal' to suggest that it means 'significant' ... the plain language and ordinary meaning of partial and nominal do not suggest either of those interpretations." It refused the United States' appeals to legislative history, to a Chief Counsel memorandum that "may not be used or cited as precedent," and to the section heading, whose word "closure" it read "to recognize closure and other disruptions." It found "even Defendant's own argument is contradictory" on the gross-receipts prong and held the two prongs independent "by Defendant's admission." On causation, the United States argued that the virus, not the orders, caused the hospital's changes; the court held that "the required protocols and procedures to comply with the Proclamation" were caused by the order, that "[s]ick patients and employees alone did not require additional protocols," and that on the United States' theory "there are not many businesses or any business that would be eligible under the ERC at all."89 A delay is a suspension; an interruption is a suspension; a portion is any portion; "more than nominal" is the United States' own persuasive gloss and is not "significant"; and every protocol an order compelled is a suspension the order caused. The United States' contrary theory would leave almost no employer eligible under a clause Congress re-enacted on March 11, 2021 and left in place for the third quarter of 2021 when it terminated the fourth on November 15, 2021.90
The refund remedy and the duty to pay
[T]he United States does not disagree that once a refund has been determined to be appropriate, the IRS must pay it out.
Tr. 40:9-12
The United States obtained judgment in Stenson Tamaddon on the premise that every employer can litigate the Notice's application to its claim de novo. It wrote that "[the plaintiff's] clients may bring a refund suit if the IRS disallows their ERC claims" and that such suits afford "de novo judicial review of the merits"; the District Court held that a party who "disagrees with the IRS's interpretation as applied to their case" retains "an adequate remedy to challenge it—a tax refund suit." To the Ninth Circuit it wrote that in a refund suit "the Notice would be reviewed under the same standards that govern judicial review of any other agency rule" and that a taxpayer can "seek a judicial determination that it is entitled to the ERC."91 At the hearing, counsel for the United States said that section 6532(a) "gives taxpayers an avenue to challenge that delay in federal court," disclaimed any authority to withhold the credit from employers Congress made eligible ("I don't believe there is that authority"), and stated that "there has been no cancellation. There has been no suspension of a tax program here."92 No Notice provision on which a Service letter rests has been adjudicated correct in any employer's case; each remains an interpretation the United States has invited every employer to test in court, on the statute, by a preponderance of the evidence, on the orders themselves; and a determination that an employer was partially suspended triggers the mandatory duty of section 6402(a) and section 3134(b)(3): the excess "shall be refunded."93
The inconsistency, named
The District Court saw the record of how the Notice is applied, wrote that it was "concerned by the prospect of something labeled as a 'policy statement' being practically applied as though it were a binding rule," and upheld the Notice only "[s]o long as the agency ultimately retains its discretion."94 The United States wrote that "one would hope that the IRS is indeed evaluating ERC claims consistent with the explanations it has offered the public," and the District Court quoted the sentence as a reason for its holding.95 The United States cannot describe the Notice as an optional safe harbor when the Notice is challenged and apply it as a binding rule of exclusion when a claim is examined. A letter that decides a claim on the ten percent figure, on an "essential" designation, on a "recommendations" label, on the addressee of an order or on a "comparable operations" test applies as law what the United States told two courts is not law, and applies as a floor what it told two courts is a ceiling of its own generosity. Under the framework Tri-State applied after Loper Bright, an agency reading earns weight only by its "thoroughness, consistency, and persuasiveness"; a reading described one way in court and applied another way in letters has none of the second quality.96 The statements quoted above are statements of a party-opponent, admissible against the United States in any refund suit; a Government brief filed in one federal court "establish[es] the position of the United States and not merely the views of its agents"; and judicial estoppel is available where the United States "succeeds in maintaining" a position and later assumes a contrary one, the District Court's acceptance being written on the face of Doc. 49 ("This Court agrees"; "As the Government puts it"; "not an exclusionary cut-off point"; "no force of law and is entitled to no deference").97 The Government's-own-words page carries every position, pinned.
The record decides
On the statute's words, on Tri-State's definitions, on the United States' own representations and on the orders in the Library, the operation of the trade or business of employers in every industry was 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 statute controls. The Notice is a safe harbor without the force of law, held to in both directions. The statute says nothing of the source or addressee of the order; "appropriate" means the authority with power over the subject; a partial suspension is a temporary delay, interruption or termination of any portion of the operation; "due to" is but-for causation; and the words on which the Service's fourteen grounds depend are not in the statute. Congress enacted the clause in March 2020, amended and extended it in December 2020, re-enacted it verbatim in March 2021 for the third and fourth quarters of 2021, and in November 2021 terminated the fourth quarter and left the third in place. The United States has agreed to every one of those propositions in one court or the other.98
The Library holds the federal instruments, the orders of all fifty States and the District, the orders of the largest metropolitan areas, the orders of the tribal nations and territories, the instruments of the sector regulators, the courts and the agencies of every layer, the standing duties of every State, and the legal authorities. Each is a public record published by the authority that issued it and subject to judicial notice. The instruments were in the Federal Register and the State registers when the claims were prepared, and they are there now.99
The Service's letters rest on a single sentence: that "there were no government orders related to COVID-19 in effect during the quarter(s) you claimed ERC which could have fully or partially suspended your trade or business." It is factually incorrect. For the six quarters it describes a period that did not occur, and for the third quarter of 2021, a quarter in which a federal order governed every commute, every entry and every health-care workplace in the country on every day, it cannot be squared with the Federal Register. The credit Congress enacted, re-enacted and left in place is owed, in every quarter, to the employers whose operations the orders suspended.
The orders were issued. They were published. They were enforced. They were in force in every quarter. They suspended the operations of every industry in this analysis. That is the record, and the record decides.