Findings
On the public record of the orders assembled in the Library and set out above, employers operating restaurants, bars, catering businesses and food-service operations in the United States were eligible employers under the Suspension Clause in each of the six calendar quarters from the second quarter of 2020 through the third quarter of 2021. The findings follow in the statutory words, one paragraph for each quarter, and are followed by the standards they satisfy.
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 credit reaches), the operation of the trade or business of employers in restaurants and food service was fully and then partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the closure orders on on-premises food and beverage service of forty-nine States and the District of Columbia and the municipal ordinances of South Dakota, the stay-at-home and gathering orders, the alcohol regulators' emergency rules and the phased reopening orders with their capacity and spacing conditions (Ex. NY-010; Ex. IL-004; Ex. TX-003; Ex. TX-021; Ex. CA-002; Ex. WA-009; Ex. FL-008; Ex. OH-004; Ex. MA-005; Ex. NJ-004; Ex. PA-002; Ex. MI-005; Ex. GA-010; Ex. LA-003 and their counterparts in every State).
The third quarter of 2020
During the calendar quarter beginning July 1, 2020 and ending September 30, 2020, the operation of the trade or business of employers in restaurants and food service was partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the capacity, spacing, party-size, seated-service and hours orders on dining rooms, the bar-closure orders of Texas, Florida, Arizona, California, Louisiana, Michigan, Nevada and Kentucky, the alcohol regulators' cutoff and enforcement rules and the gathering caps (Ex. TX-021; Ex. FL-036; Ex. CA-010; Ex. LA-014; Ex. PA-016; Ex. AZ-024; Ex. NJ-034; Ex. OH-031; Ex. MI-040; Ex. NV-022; Ex. KY-025; Ex. MET-DFW-022 and their counterparts).
The fourth quarter of 2020
During the calendar quarter beginning October 1, 2020 and ending December 31, 2020, the operation of the trade or business of employers in restaurants and food service was fully and partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the indoor-dining closure orders of Washington, Minnesota, Illinois, Michigan, Oregon, New Mexico, Kentucky, Colorado, Pennsylvania, New York City and California and of Anchorage, Philadelphia and Montgomery County, the curfew, alcohol-cutoff and capacity orders of the remaining States and Boston's rollback conditions and the gathering caps on the holiday season (Ex. WA-047; Ex. MN-032; Ex. IL-031; Ex. MI-061; Ex. OR-035; Ex. NM-039; Ex. KY-033; Ex. CO-037; Ex. PA-028; Ex. NY-039; Ex. CA-020; Ex. AK-074; Ex. MET-PHL-010; Ex. MET-BOS-010; Ex. MET-DCM-013; Ex. MA-033; Ex. NJ-037; Ex. NY-037; Ex. MD-021; Ex. VA-016; Ex. NC-023; Ex. OH-039 and their counterparts).
The first quarter of 2021
During the calendar quarter beginning January 1, 2021 and ending March 31, 2021, the operation of the trade or business of employers in restaurants and food service was fully and partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the indoor-dining closure orders that ran into January and February, the capacity, curfew, seated-service and alcohol-cutoff orders of every State, the alcohol regulators' license conditions and the federal conveyance order (Ex. CA-020; Ex. WA-104; Ex. MN-033; Ex. IL-033; Ex. MI-063; Ex. NY-040; Ex. MA-040; Ex. NJ-042; Ex. PA-022; Ex. CT-031; Ex. MD-024; Ex. VA-026; Ex. NC-023; Ex. FED-020 and their counterparts).
The second quarter of 2021
During the calendar quarter beginning April 1, 2021 and ending June 30, 2021, the operation of the trade or business of employers in restaurants and food service was partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the capacity, spacing, hours and seated-service orders of California, Washington, Oregon, New Mexico, New York, New Jersey, Pennsylvania, Massachusetts, Connecticut, Illinois, Michigan, Minnesota, Ohio, Kentucky, Louisiana and their counterparts, the alcohol regulators' license conditions, the State workplace standards and the federal conveyance order (Ex. CA-017; Ex. WA-064; Ex. OR-035; Ex. NY-045; Ex. NJ-047; Ex. PA-033; Ex. MA-043; Ex. CT-046; Ex. IL-037; Ex. MI-068; Ex. MN-037; Ex. OH-070; Ex. KY-049; Ex. LA-029; Ex. FED-020 and their counterparts).
The third quarter of 2021
During the calendar quarter beginning July 1, 2021 and ending September 30, 2021, the operation of the trade or business of employers in restaurants and food service was partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the federal conveyance order (the CDC's airborne-transmission control on every conveyance and transportation hub) and its security directives, the OSHA National Emphasis Program targeting full-service and limited-service restaurants, the entry proclamations and land-border notices, Hawaii's Executive Order 21-05 with its 50 percent indoor capacity cap and Honolulu's Safe Access Oahu, the indoor face-covering orders of Hawaii, Louisiana, Nevada, Oregon, Washington, Illinois, New Mexico and the District of Columbia, of California and Connecticut as to the unvaccinated, and of Los Angeles County, the Bay Area, New Orleans, Chicago, Philadelphia, Boston, St. Louis, Kansas City, Atlanta, Charlotte, Cleveland, Columbus and Dallas County (each a workplace infection-prevention and exposure-control requirement imposed on staff and patrons alike), the vaccination-proof conditions of entry in New York City, San Francisco, New Orleans and Honolulu, New York's food-service employee face-covering rule and HERO Act standard, the alcohol regulators' license and permit conditions, the State workplace standards and the school, health-care and court orders on the industry's counterparties (Ex. FED-020; Ex. SEC-05-002; Ex. FED-207; Ex. FED-233; Ex. FED-235; Ex. HI-025; Ex. HI-024; Ex. MET-HNL-035; Ex. LA-036; Ex. NV-041; Ex. NV-051; Ex. OR-048; Ex. WA-078; Ex. IL-042; Ex. NM-067; Ex. CA-035; Ex. CT-050; Ex. DC-057; Ex. MET-LA-018; Ex. MET-SFO-011; Ex. MET-MSY-029; Ex. MET-CHI-026; Ex. MET-PHL-019; Ex. MET-BOS-013; Ex. MET-STL-021; Ex. MET-KC-002; Ex. MET-KC-006; Ex. MET-ATL-063; Ex. MET-CLT-025; Ex. MET-NYC-017; Ex. NY-133; Ex. NY-129; Ex. TX-032; Ex. AGY-ST-ALCOHOL-041; Ex. CA-024; Ex. VA-038; Ex. NJ-051; Ex. ECO-B-083; Ex. ECO-C-070 and their counterparts).
The standards the findings satisfy
Each finding is established by a preponderance of the evidence on public records of which a court must take judicial notice on request.188 Each rests on the text of the Suspension Clause as construed in Tri-State, on the Notice's own restaurant examples and on the instruments themselves, and therefore has substantial authority and a reasonable basis within the meaning of Treas. Reg. § 1.6662-4(d) and § 1.6662-3(b)(3); a claim resting on it is not a claim "made for an excessive amount" within section 6676(a) as amended, and the reasonable cause and good faith that section 6676(a) and section 6664(c) describe are established by the authorities on which it rests; and it states no position the Service has identified as frivolous under section 6702.189 Where the Service alleges fraud, it bears the burden of proving it by clear and convincing evidence; nothing in the public record supports such an allegation against any employer of this class who relied on the orders described here.190 The standards themselves are set out at The Standards.