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 in staffing, janitorial, security, landscaping and administrative support services 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 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 second quarter of 2020
During the calendar quarter beginning April 1, 2020 and ending June 30, 2020, the operation of the trade or business of employers in this industry was partially suspended due to the stay-at-home, business-closure and telework orders of every State and the District of Columbia that closed or emptied the customer sites at which the industry's placements, cleaning contracts and guard posts are performed; the essential-list classifications that fixed the industry's own permission to work; the orders that barred and confined landscaping by name; the orders that reduced call centers' in-person workforces to zero and closed them by name; the orders that suspended fingerprint checks and extended permits because the issuing offices were closed; the suspension of consular services, the closure of immigration offices and the suspension of temporary-worker entry; and the federal leave mandate, each an order from an appropriate governmental authority limiting commerce, travel or group meetings due to COVID-19.
The third quarter of 2020
During the calendar quarter beginning July 1, 2020 and ending September 30, 2020, that operation was partially suspended due to the reopening orders that fixed the headcount, hours, spacing, screening, face coverings and written plans of every customer site, the telework commands that kept offices and call floors remote, Virginia's workplace standard, the metro face-covering orders, workplace infection-prevention and exposure-control requirements imposed on every indoor business premises, the metro closure and stay-at-home orders, the school and venue closures, the entry proclamation that closed the seasonal labor pathway and the nursing-home testing rule that reached staff under arrangement.
The fourth quarter of 2020
During the calendar quarter beginning October 1, 2020 and ending December 31, 2020, that operation was partially suspended due to the State workplace standards of Michigan, New Jersey, California and Oregon, the winter re-tightening orders that re-closed or re-capped customer sites and offices in seventeen jurisdictions, the metro orders that confined residents and closed businesses a second time, and the extension of the entry suspension into the next season's hiring window.
The first quarter of 2021
During the calendar quarter beginning January 1, 2021 and ending March 31, 2021, that operation was partially suspended due to the continuing winter orders through their stepped expiry, the federal workplace infection-prevention order (face coverings and distancing) and twenty-five-percent occupancy cap at every federal site the industry cleans, guards and staffs, the conveyance order's face-covering requirement, an airborne-transmission control on every commute, the workplace standards, the entry suspension to its last day, and the metro orders.
The second quarter of 2021
During the calendar quarter beginning April 1, 2021 and ending June 30, 2021, that operation was partially suspended due to the telework and capacity orders in force to their expiry between April 4 and June 30, 2021, the workplace standards, the Healthcare ETS from June 21, the federal workplace, conveyance and entry orders, the health-care staff testing and vaccination-offering instruments, the H-2B rule that rationed the season's labor, and the metro dial orders and face-covering orders, the exposure-control requirements those metros enforced against every business operator.
The third quarter of 2021
During the calendar quarter beginning July 1, 2021 and ending September 30, 2021, that operation was partially suspended due to the Healthcare ETS at every setting where the industry's people provide healthcare support services; the federal contractor orders of July 29 and September 9, 2021; the conveyance, entry, border and nursing-home orders; the H-2B rule; the vaccination and testing mandates of New York, New Jersey, Illinois, California, Washington, Oregon, New Mexico, Connecticut, Massachusetts, Maryland, Rhode Island, Maine, Delaware, Colorado and the District of Columbia, whose definitions reach contract staff, contractors and providers of custodial and administrative services; the workplace standards and face-covering orders of the States, the occupational-health and airborne-transmission controls of the quarter; the school face-covering, testing and staff-vaccination orders of the 2021-22 year; the face-covering, proof-of-vaccination, contractor and court orders of the largest metros; and the isolation, quarantine and paid-leave instruments in force on every day of the quarter.
In each quarter
In each quarter the orders caused a temporary delay, interruption or termination of a more than nominal portion of the industry's operations; in each quarter the suspension existed "during the calendar quarter"; and in each quarter, but for the orders, no law required the change.223
Each finding is established by a preponderance of the evidence, on public records subject to judicial notice, in a de novo proceeding.224 Each position taken in this analysis has substantial authority: the statutory text, four enactments of Congress, the Supreme Court's canons of construction and causation, Tri-State's holdings on the United States' agreed definitions, the District Court's holdings in Stenson Tamaddon, the United States' representations to two federal courts, and the instruments themselves.225 A taxpayer who assembled the orders that governed its industry and its customers' industries and applied the statute's words to them acted with reasonable cause and in good faith under section 6664(c); the erroneous-claim penalty of section 6676 does not reach such a claim; and a position that applies the words Congress wrote to the Federal Register and the State registers is not frivolous under section 6702 or Notice 2010-33.226 Fraud is the Government's burden by clear and convincing evidence, and nothing in a claim founded on the public record supports it.227
The Library
The Library is organized by layer: the federal instruments, the fifty States and the District, the forty metros, the agency clusters, the ecosystem files, the sector files and the legal authorities, with exhibit prefixes FED, the State codes, MET, AGY, ECO, SEC and LAW, and GOV for the Government-positions exhibits. Each exhibit is a file saved from the issuing authority or an identifiable secondary source and indexed with its issuer, instrument, dates, in-force quarters, limitation types, grade, retrieval route and source URL. Only exhibits verified from a primary or a secondary source are cited by name on this site, and the sector file for this industry holds the operative clauses of every sector-specific instrument quoted here.