Findings
On the public record set out above and tabulated on this page, the following findings are made for dental and orthodontic practices, in the words of the statute, for each of the six calendar quarters from the second quarter of 2020 through the third quarter of 2021. Each finding rests on instruments with exhibit identifiers, states the standard under which it is made, and identifies the records that support it. The Service's contrary account of these six quarters is not a contest of weight; it is a description of a period that did not occur.
The findings
The second quarter of 2020
The operation of dental and orthodontic practices was partially suspended during the second quarter of 2020 due to orders from an appropriate governmental authority limiting commerce, travel and group meetings due to COVID-19, within the meaning of CARES Act § 2301(c)(2)(A)(ii)(I). In at least thirty States and the District of Columbia every function but emergency care was terminated by order from April 1, 2020 until the effective date of the State's reopening instrument between April 22 and June 8, 2020; in every other State the stay-at-home orders confined the patient base to the home while the boards and health departments directed emergency-only care; and from each State's reopening date through June 30, 2020 every function operated under the reopening instruments' screening, protective-equipment, fallow-time, capacity, waiting-room and written-plan conditions, with the FFCRA mandate and FEMA's allocation rule in force in every State on every day of the quarter.338 Lead instruments: Ex. SEC-03-010 (Washington); Ex. SEC-03-042 (Florida); Ex. SEC-03-032 (Tennessee); Ex. SEC-03-018 (Michigan); Ex. SEC-03-019 (Minnesota); Ex. SEC-03-023 (New Jersey); Ex. SEC-03-036 (Iowa); Ex. SEC-03-050 (Kentucky); Ex. SEC-03-014 (Texas); Ex. SEC-01-068 (Oregon); Ex. SEC-03-038 (Alabama); Ex. SEC-03-017 (Texas, rule 108.7); Ex. SEC-03-037b (Iowa, reopening); Ex. SEC-03-029 (Arizona); Ex. SEC-03-041 (Mississippi); Ex. SEC-03-056 (New Mexico); Ex. SEC-03-013 (Oregon, reopening); Ex. SEC-03-049 (Maryland); Ex. FED-075 (FEMA); Ex. FED-170 (FFCRA). Functions: CH, PR, EM, ST, FD, SC, LB, HR, OF, WF, CB.
The third quarter of 2020
The operation of dental and orthodontic practices was partially suspended during the third quarter of 2020 due to orders from an appropriate governmental authority limiting commerce, travel and group meetings due to COVID-19: the reopening conditions, board rules and workplace standards of every State that issued them, in force on July 1 and September 30, 2020, and the federal allocation and paid-leave mandates.339 Lead instruments: Ex. SEC-03-017 (Texas, readopted Aug. 25, 2020); Ex. IA-019, Ex. IA-021, Ex. IA-022 and Ex. IA-025 (Iowa proclamations); Ex. SEC-03-020 (Minnesota); Ex. SEC-03-013 (Oregon); Ex. NY-111 (New York); Ex. SEC-03-029 (Arizona); Ex. LA-045 and Ex. LA-046 (Louisiana); Colorado Public Health Order 20-29 (Ex. SEC-03-026); Ex. WA-032 and Ex. AGY-ST-LABOR-WORKPLACE-050 (Washington); Ex. AGY-ST-LABOR-WORKPLACE-001 (Virginia); Ex. KY-029 (Kentucky); Kansas Executive Order 20-52 of July 2, 2020; Ex. MET-MSY-054, Ex. MET-DFW-023, Ex. MET-HOU-020 and Ex. MET-PHX-001 (metros); Ex. AGY-ST-HEALTH-BOARDS-007 and Ex. PA-097 (licensing); Ex. FED-077 (FEMA); Ex. FED-170 (FFCRA). Functions: CH, PR, ST, FD, SC, LB, HR, OF, WF, CB.
The fourth quarter of 2020
The operation of dental and orthodontic practices was partially suspended during the fourth quarter of 2020 due to orders from an appropriate governmental authority limiting commerce, travel and group meetings due to COVID-19: the continuing reopening conditions, the State workplace standards of Michigan, Virginia, Washington and California, the winter re-tightening orders and the stay-at-home orders of the winter.340 Lead instruments: Ex. MET-DET-001 (Detroit); Ex. SEC-12-059 (MIOSHA); Ex. AGY-ST-LABOR-WORKPLACE-002 (Cal/OSHA); Ex. PA-025 and Ex. AGY-ST-HEALTH-SUBORDERS-011 (Pennsylvania); Ex. NM-043 (New Mexico); Ex. WA-049 and Ex. WA-047 (Washington); California's Regional Stay at Home Order of Dec. 3, 2020; Ex. MET-LA-012 (Los Angeles County); Ex. MET-STL-074 (St. Louis County); Ex. NV-030 (Nevada); Illinois Executive Order 2020-73 of Nov. 18, 2020; Ex. IN-048 (Indiana); Ex. OR-035 (Oregon); Ex. AGY-TRIBAL-013 (Navajo Nation); Ex. IA-032 and Ex. IA-033 (Iowa, with the proclamation of Nov. 16, 2020); Ex. AGY-ST-HEALTH-BOARDS-014 and Ex. PA-097 (licensing); Ex. FED-078 (FEMA); Ex. FED-170 (FFCRA). Functions: CH, PR, ST, FD, SC, LB, HR, OF, WF, CB.
The first quarter of 2021
The operation of dental and orthodontic practices was partially suspended during the first quarter of 2021 due to orders from an appropriate governmental authority limiting commerce, travel and group meetings due to COVID-19: the continuing State conditions and workplace standards, the winter orders that ran into January and March 2021, the federal conveyance order from February 1, 2021 and the National Emphasis Program from March 12, 2021.341 Lead instruments: Ex. FED-020 (conveyance order); Ex. FED-082 (National Emphasis Program); Ex. TX-055 (Texas, rule 108.7 as amended Feb. 19, 2021); Ex. IA-034 and Ex. IA-036 (Iowa, with the proclamation of Feb. 5, 2021); Ex. CA-026 (California); Ex. MA-066 (Massachusetts, to Mar. 1, 2021); Ex. AGY-ST-LABOR-WORKPLACE-002 (Cal/OSHA); Ex. SEC-12-059 (MIOSHA); Ex. AGY-ST-LABOR-WORKPLACE-001 (Virginia, permanent standard); Ex. SEC-03-020 (Minnesota); Ex. SEC-03-013 (Oregon); Ex. NY-111 (New York); Colorado Public Health Order 20-29 (Ex. SEC-03-026); Ex. LA-046 (Louisiana); Ex. OH-027 (Ohio); Ex. SEC-03-029 (Arizona); Kansas Executive Order 20-52 (to Mar. 31, 2021); Ex. AGY-ST-HEALTH-BOARDS-021 and Ex. PA-097 (licensing); Ex. FED-078 (FEMA). Functions: CH, PR, ST, FD, SC, LB, HR, OF, WF, CB.
The second quarter of 2021
The operation of dental and orthodontic practices was partially suspended during the second quarter of 2021 due to orders from an appropriate governmental authority limiting commerce, travel and group meetings due to COVID-19: the State conditions and standards in force until their stepped expiry between April 5 and July 1, 2021, the federal conveyance order and allocation rule, and, from June 21, 2021, the Standard.342 Lead instruments: Ex. FED-080 (Healthcare Emergency Temporary Standard, effective June 21, 2021); Ex. FED-081 (inspection directive); Ex. FED-079 and Ex. FED-078 (FEMA, to June 30, 2021); Ex. FED-020 (conveyance order); Ex. TX-056 (Texas, to June 18, 2021); Ex. IA-037 and Ex. IA-038 (Iowa, to June 26, 2021); Ex. SEC-03-020 (Minnesota Executive Order 20-51, to May 27, 2021); Ex. LA-047 (Louisiana, to May 24, 2021); Ex. NY-111 (New York, to June 25, 2021); Ex. OR-043 (Oregon, to June 30, 2021); Ex. WA-065 (Washington, to June 30, 2021); Ex. SEC-12-059 and Ex. AGY-ST-LABOR-WORKPLACE-062 (MIOSHA, as amended May 24, 2021, to June 22, 2021); Ex. AGY-ST-LABOR-WORKPLACE-002 (Cal/OSHA, readopted June 17, 2021); Ex. NJ-050 (New Jersey, health-care masks retained May 24, 2021); Ex. MA-050 (Massachusetts, May 29, 2021); Connecticut's Department of Public Health rule of May 19, 2021; Ex. MET-CHI-018 (Chicago, June 11, 2021); Ex. AGY-ST-LABOR-WORKPLACE-040 (Nevada OSHA, June 24, 2021). Functions: CH, PR, ST, FD, SC, LB, HR, OF, WF, CB.
The third quarter of 2021
The operation of dental and orthodontic practices was partially suspended during the third quarter of 2021 due to orders from an appropriate governmental authority limiting commerce, travel and group meetings due to COVID-19, within the meaning of I.R.C. § 3134(c)(2)(A)(ii)(I): in every State and territory, by the Standard, the revised National Emphasis Program, the conveyance order and the respirator authorizations; in the States and metros that issued them, by the health-care vaccination orders naming dentistry, the health-care masking rules (airborne-transmission controls), the State workplace standards and the Delta-wave orders; and everywhere, by the counterparty orders on hospitals, surgery centers, schools and transit.343 Lead instruments: Ex. FED-080; Ex. FED-083; Ex. FED-020; Ex. AGY-FED-HEALTH-OTHER-052; Ex. SEC-03-072 and Ex. SEC-03-073 (Washington); Ex. SEC-03-074 (Maine); Ex. SEC-03-078 (Illinois); Ex. SEC-01-085 (Rhode Island); Ex. MET-PHL-021 and Ex. MET-PHL-019 (Philadelphia); Ex. MET-LA-023, Ex. MET-LA-018 and Ex. MET-LA-055 (Los Angeles County and Pasadena); Ex. MET-DEN-023 (Denver); Ex. CA-036 and Ex. AGY-ST-HEALTH-SUBORDERS-110 (California, the State Public Health Officer Order of June 11, 2021 and the face-covering guidance of July 28, 2021); Ex. OR-048 and Ex. OR-046 (Oregon); Ex. WA-078 (Washington); Ex. NY-073 (New York); Ex. NJ-050 (New Jersey); Ex. MA-050 (Massachusetts); Ex. CT-052 (Connecticut); Kentucky Executive Order 2021-386 (to Sept. 7, 2021); Hawaii's Twenty-First Proclamation of June 7, 2021 and Emergency Proclamation of Aug. 5, 2021; New Mexico's Public Health Order of Aug. 17, 2021; Ex. DC-057 (District of Columbia); Ex. NV-041 (Nevada); Louisiana Proclamation 137 JBE 2021; Ex. AGY-ST-LABOR-WORKPLACE-054 (Washington standard); Ex. AGY-ST-LABOR-WORKPLACE-040 (Nevada); Ex. AGY-ST-LABOR-WORKPLACE-021 (Oregon); Ex. MET-DFW-028, Ex. MET-CHI-026, Ex. MET-BOS-013, Ex. MET-SFO-010, Ex. MET-SFO-049, Ex. MET-SFO-071, Ex. MET-STL-021, Ex. MET-MSY-027, Ex. MET-SEA-002, Ex. MET-DCM-023 and Ex. MET-HNL-035 (metros); Ex. AGY-DEFENSE-GUARD-081 and Ex. AGY-FED-HEALTH-OTHER-070 (federal facilities); Ex. AGY-TERRITORIES-033 (Puerto Rico); Ex. AGY-TRIBAL-040 (Mescalero). Functions: CH, PR, ST, FD, SC, LB, HR, OF, WF, CB.
The standards satisfied
Each finding applies the seven elements of the Suspension Clause, set out at /law/statute, to the instruments stated in the layers and quarters sections: an order; from an appropriate governmental authority; limiting commerce, travel or group meetings; due to COVID-19; a full or partial suspension of the operation of the trade or business; during the calendar quarter; due to the order. "Partially suspended" is read as Tri-State read it on the United States' agreed definition: "a temporary delay, interruption, or termination of a portion an employer's business."344 "Due to" is read as but-for causation.345 "Appropriate" is read as the District Court read it: "fitting," the authority with jurisdiction over the commerce, travel or meeting it limited.346 The Notice is treated as the United States' interpretation, binding on the Service where its words help the class and without force where they narrow the text; the ten percent figure is treated as the United States' safe harbor and not as a requirement.347
The burden and the evidence
The employer carries its burden in a refund suit by a preponderance of the evidence; the court redetermines the liability de novo; governmental orders are public records subject to judicial notice under Rule 201(b); and the United States' statements in Stenson Tamaddon and Tri-State are admissions of a party-opponent under Rule 801(d)(2).348 Every exhibit identifier on this page resolves to a Library record stating the issuer, the instrument, the date issued, the effective date, the end date and the verification grade, and to the exhibit file where the Library holds one.
The penalty standards
The positions stated in this analysis are supported by substantial authority within the meaning of Treas. Reg. § 1.6662-4(d) and rest on a reasonable basis within the meaning of Treas. Reg. § 1.6662-3(b)(3): the statute's text, a federal district court's construction of it on the United States' agreed definitions, the Notice's own examples, and the United States' representations in two courts.349 They are not frivolous within the meaning of I.R.C. § 6702 and Notice 2010-33, and a claim resting on them is not a claim "made for an excessive amount" within I.R.C. § 6676(a), as amended by Pub. L. 119-21, § 70605(f), to reach employment-tax claims made after July 4, 2025, and the reasonable cause that § 6676(a) preserves is established by the authorities on which the claim rests.350 Fraud is the Government's burden by clear and convincing evidence under I.R.C. § 7454(a), and nothing in a claim founded on the Federal Register, the State registers and the boards' emergency rules supports it. A position resting on these authorities was correct when taken and is correct now.
The records
The orders
The Library's records for this industry, its State, metro, agency and federal collections and its standing-duties layer; the American Dental Association's fifty-State workbook and the American College of Surgeons' tracker as secondary compendia; and the Kaiser Family Foundation's State Social Distancing Actions files of July 2 and September 21, 2021.351
The law
CARES Act § 2301 and I.R.C. § 3134 in the Statutes at Large; Notices 2021-20, 2021-23, 2021-49 and 2021-65 in the Internal Revenue Bulletin; the captured FAQ pages of April 29 and June 19, 2020; AM 2023-005 and AM 2023-007; the FAQ page as rendered September 26, 2026; IRM 32.2.2.10; Doc. 44 and Doc. 49 in Stenson Tamaddon; the Opening Brief and Brief for Appellees in No. 25-4217; the transcript of the preliminary-injunction hearing of July 16, 2024; ECF No. 38 in Tri-State; and the authorities set out at /law/statute and /irs/own-words.352
The Bureau of Labor Statistics' Occupational Employment and Wage Statistics for NAICS 621200 (May 2021), the Quarterly Census of Employment and Wages for NAICS 621210 (establishments and monthly employment, 2020Q1 through 2021Q3) and The Employment Situation for April 2020.353