Findings
On the statute's words, on Tri-State's definitions, on the United States' own representations and on the orders in the Library, employers operating colleges, universities, community colleges and career and technical schools in the United States had the operation of their trade or business 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 findings that follow are stated in the words of the Suspension Clause, quarter by quarter, and then the standards those findings satisfy.
The findings by quarter
During the calendar quarter beginning April 1, 2020 and ending June 30, 2020, the operation of the trade or business of employers operating colleges, universities, community colleges and career and technical schools in the United States was partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the orders prohibiting in-person instruction by name and confining educational institutions to distance learning in every State and the District of Columbia (Ex. WA-008; Ex. OR-059; Ex. NJ-002; Ex. VA-006; Ex. GA-009; Ex. AL-005; Ex. SC-002; Ex. WY-004; Ex. LA-004; Ex. MN-019; Ex. CO-019; Ex. IL-005; Ex. OH-011; Ex. NY-002; Ex. PA-002; Ex. MA-008; Ex. CT-007; Ex. CA-002), the county closure orders (Ex. MET-RIV-004; Ex. MET-SAN-002; Ex. MET-MIA-003), the directives of the State university systems (Ex. SEC-27-007; Ex. SEC-27-008; Ex. AGY-ST-EDUCATION-HIGHER-ED-027), the traveler quarantines (Ex. HI-003; Ex. RI-008; Ex. VT-012; Ex. TX-006), the federal entry proclamations, consular suspension and student-visa terms (Ex. ECO-A-003; Ex. AGY-FED-LABOR-IMMIGRATION-060; Ex. SEC-15-004) and the federal leave mandate (Ex. FED-170). Every private institution was an eligible employer for the quarter.
During the calendar quarter beginning July 1, 2020 and ending September 30, 2020, the operation of the trade or business of such employers was partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the conditional-reopening orders that fixed the date and terms of the fall term (Ex. NJ-024; Ex. NJ-032; Ex. WA-038; Ex. OR-021; Ex. NY-031; Ex. NY-112; Ex. NY-050; Ex. MN-029; Ex. VA-014; Ex. AGY-ST-EDUCATION-HIGHER-ED-009; Ex. WY-024), the traveler quarantines (Ex. NY-006; Ex. CT-023; Ex. MA-025; Ex. NM-024; Ex. DC-081; Ex. MET-CHI-019), the college-town and county orders (Ex. IA-023; Ex. MS-036; Ex. MET-DEN-100; Ex. MET-DEN-037; Ex. MET-DFW-024) and the federal student-visa, entry and leave instruments (Ex. SEC-15-005; Ex. ECO-A-011; Ex. FED-170). Every private institution was an eligible employer for the quarter.
During the calendar quarter beginning October 1, 2020 and ending December 31, 2020, the operation of the trade or business of such employers was partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the winter re-closure and testing orders (Ex. MI-060; Ex. MI-061; Ex. MET-PHL-010; Ex. UT-029; Ex. UT-034; Ex. WA-046; Ex. OR-035; Ex. CA-020; Ex. VA-016; Ex. VT-034; Ex. DC-080), the continuing conditional-operation orders (Ex. NY-112; Ex. NJ-032; Ex. OR-021; Ex. MN-032; Ex. MET-DEN-037), the traveler orders (Ex. MD-023; Ex. PA-021; Ex. NY-006; Ex. VT-080) and the federal entry and leave instruments (Ex. ECO-A-012; Ex. FED-170). Every private institution was an eligible employer for the quarter.
During the calendar quarter beginning January 1, 2021 and ending March 31, 2021, the operation of the trade or business of such employers, public institutions now among them under section 207(d)(3)(A) of the Taxpayer Certainty and Disaster Tax Relief Act of 2020, was partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the campus testing and conditional-operation orders (Ex. UT-034; Ex. UT-037; Ex. RI-033; Ex. WA-046; Ex. OR-035; Ex. NY-112; Ex. NJ-024; Ex. VA-016; Ex. WV-056; Ex. MI-063; Ex. MET-SAT-056), the traveler orders (Ex. NY-047; Ex. CT-034; Ex. MA-025; Ex. PA-027; Ex. WA-054), the federal entry, testing and conveyance orders (Ex. FED-207; Ex. FED-042; Ex. FED-020; Ex. FED-050) and the federal workplace orders (Ex. FED-060; Ex. FED-270). Every institution, public and private, was an eligible employer for the quarter.
During the calendar quarter beginning April 1, 2021 and ending June 30, 2021, the operation of the trade or business of such employers was partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the conditional-operation orders through their terminations (Ex. OR-021; Ex. OR-043; Ex. WA-046; Ex. NY-112; Ex. NY-049; Ex. NJ-024; Ex. NJ-050; Ex. VA-016; Ex. VA-029; Ex. RI-033; Ex. UT-042; Ex. UT-043; Ex. LA-032; Ex. MS-051; Ex. DC-080), the statutes and executive orders prescribing campus policy (Ex. ID-028; Ex. AR-033; Ex. MT-072; Ex. ND-082; Ex. IA-047; Ex. GA-036; Ex. AL-078; Ex. OK-043; Ex. FL-030; Ex. TX-032; Ex. UT-045; Ex. UT-046; Ex. AZ-043; Ex. WA-071), the workplace standards (Ex. ECO-B-044; Ex. FED-080) and the federal entry, testing and conveyance orders (Ex. FED-208; Ex. FED-207; Ex. FED-042; Ex. FED-020; Ex. FED-051). Every institution, public and private, was an eligible employer for the quarter.
During the calendar quarter beginning July 1, 2021 and ending September 30, 2021, the operation of the trade or business of such employers was partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the federal conveyance, entry, testing, border and workplace orders (Ex. FED-020; Ex. FED-051; Ex. FED-052; Ex. FED-042; Ex. FED-207; Ex. FED-208; Ex. FED-232; Ex. FED-233; Ex. FED-080; Ex. FED-272), the campus orders of Washington, Illinois, Nevada, Minnesota and Virginia (Ex. WA-071; Ex. WA-074; Ex. WA-081; Ex. WA-079; Ex. IL-042; Ex. IL-043; Ex. NV-041; Ex. NV-055; Ex. MN-044; Ex. VA-045) and Massachusetts's Executive Order 595 on the Commonwealth's executive-department workforce, which addressed higher education by name (Ex. MA-068), the statewide indoor face-covering orders of Louisiana, Oregon, New Mexico, Hawaii and the District, workplace infection-prevention and exposure-control requirements enforced against the operator of every indoor space (Ex. LA-036; Ex. LA-038; Ex. OR-048; Ex. NM-068; Ex. HI-023; Ex. HI-024; Ex. DC-057), the metro orders (Ex. MET-PHL-021; Ex. MET-DEN-023; Ex. MET-DFW-030; Ex. MET-AUS-051; Ex. MET-BOS-013; Ex. MET-LA-018; Ex. MET-SFO-071; Ex. MET-NYC-017; Ex. MET-NYC-018), the instrumentalities' rules (Ex. SEC-27-001; Ex. SEC-27-011; Ex. IN-094; Ex. KS-096; Ex. ND-083; Ex. WY-060), the quarantine and isolation orders (Ex. IN-092; Ex. KS-056; Ex. KS-057), the counterparty orders on hospitals and schools (Ex. FED-080; Ex. NY-071; Ex. NJ-055; Ex. KY-052; Ex. PA-042) and the prohibitory instruments of fifteen States with the litigation decided inside the quarter (Ex. TX-036; Ex. TX-037; Ex. FL-030; Ex. AZ-043; Ex. UT-045; Ex. MT-072; Ex. GA-036; Ex. AL-078; Ex. AR-033; Ex. AR-081; Ex. IA-047; Ex. IA-057; Ex. ID-028; Ex. OK-043; Ex. ND-082; Ex. SC-045; Ex. SC-040; Ex. NH-068; Ex. TN-065). Every institution, public and private, was an eligible employer for the quarter, and Congress re-enacted the test for this quarter on March 11, 2021 and left it in place on November 15, 2021. Measured against that inventory, the Service's form sentence that no governmental orders related to COVID-19 were in effect in the quarter is factually incorrect; it describes a fall term that did not open. The position that an employer operating a college, university, community college or career and technical school in the United States between March 2020 and September 2021 was subject to no governmental order limiting its operations cannot be squared with the Federal Register or with the fifty State registers, and these findings decline to treat it as a serious account of the period.
The standards satisfied
The findings stated here rest on the statutory text, on Tri-State, on Burrage, Gross, Nassar, Bostock and Abercrombie, on the Notice's own favorable Q&As and on the instruments in the Library, and they satisfy every standard the Code and the regulations state. Preponderance of the evidence is the only standard for a refundable credit, and the orders themselves, public records subject to judicial notice under Rule 201, carry it.97 Fraud is the Government's burden by clear and convincing evidence under section 7454(a), and nothing in a claim founded on the Federal Register and the fifty State registers approaches it.98 A position so founded carries substantial authority under Treasury Regulation § 1.6662-4(d), an "objective standard" satisfied by "a well-reasoned construction of the applicable statutory provision" and by "notices, announcements and other administrative pronouncements published by the Service in the Internal Revenue Bulletin," and reasonable basis under § 1.6662-3(b)(3), "significantly higher than not frivolous"; it is taken with reasonable cause and in good faith under section 6664(c); it is not frivolous under section 6702 and Notice 2010-33, which lists no position concerning the ERC or the meaning of a governmental order; and section 6676(a), as amended by Public Law 119-21 for claims made after July 4, 2025 to reach employment-tax refund claims, excepts every claim shown to rest on reasonable cause.99 The United States' statements in Doc. 44, in the Brief for Appellees and at the July 16, 2024 preliminary-injunction hearing are admissions of a party-opponent under Rule 801(d)(2); judicial estoppel is available against it under New Hampshire v. Maine, Hamilton and Ibrahim; and the Service is bound by its own directive to the Notice "to the same extent as a revenue ruling."100 The COVID Project holds the United States to those positions.