In plain terms: some letters say the orders "had lifted before the quarter began," so whatever you felt afterward was only a "lingering effect." For the third quarter of 2021 the first half of that sentence is untrue: federal orders were in force on every day of the quarter, eight jurisdictions kept statewide indoor masking and exposure-control orders, sixteen States and the District ordered health-care workers vaccinated, and more than thirty metropolitan health authorities issued orders. The second half misreads the statute, whose word is "suspended," a word a federal court has read, on the United States' own agreed definition, to include a delay. When five quarters of orders dismantled part of a business and the last orders permitted its restoration only on a timetable they fixed, the delay in restoring it was caused by the orders. The Service's authority for the ground is a memorandum that says of itself that it "may not be used or cited as precedent."
"The orders had lifted before the quarter began; any effect was a lingering effect."
Form language of the Service's letters and Forms 886-A on the suspension prong
For the third quarter of 2021 the premise is untrue. On every day from July 1 through September 30, 2021 the CDC conveyance order and its security directives (Ex. FED-020; Ex. FED-051; Ex. FED-052), the entry proclamations and the monthly land-border prohibitions (Ex. FED-207; Ex. FED-208; Ex. FED-233), the Healthcare Emergency Temporary Standard (Ex. FED-080) and the federal eviction moratoria (Ex. FED-364; Ex. FED-379; Ex. FED-026) were in force. Statewide indoor masking and exposure-control orders were in force in Louisiana, Nevada, Oregon, Washington, Illinois, New Mexico, Hawaii and the District (Louisiana Proclamation 137 JBE 2021 of August 2, 2021, renewed by Proclamation 167 JBE 2021, Ex. LA-038; Ex. NV-041; Ex. OR-048; Ex. WA-078; New Mexico's Public Health Emergency Order of August 17, 2021, extended by the Order of September 15, 2021, Ex. NM-070; Ex. DC-057; Illinois Executive Order 2021-20 of August 26, 2021; Hawaii's Emergency Proclamation of August 5, 2021). Sixteen States and the District ordered their health-care workers vaccinated (Ex. CA-030; Ex. NY-071; Ex. NJ-056; Ex. WA-077; Ex. OR-046; Ex. NM-068), and more than thirty metropolitan health authorities issued masking, exposure-control or vaccination-proof orders (Ex. MET-NYC-017; Ex. MET-LA-018; Ex. MET-CHI-026; Ex. MET-SFO-071). Ground 1 lists them; the quarter's page lists them instrument by instrument; and the continuing-suspension analysis states, pathway by pathway, why the suspension the earlier orders compelled continued into the quarter. The Service's phrase describes a quarter with no orders. The record shows a quarter with federal orders on every day, statewide orders in eight jurisdictions, vaccination mandates in sixteen States and the District, and orders in more than thirty metropolitan areas.1
The statute's word
The statute's word is "suspended." In Tri-State Memorial Hospital v. United States the parties agreed, and the court adopted, the definition of "suspension" as "[t]he act of temporarily delaying, interrupting, or terminating something," and the court held that "a 'partial suspension' is a temporary delay, interruption, or termination of a portion an employer's business." A delay is a suspension. Where the orders of five quarters dismantled a function and their own last steps, taken between March 10 and July 1, 2021, permitted its restoration only on a timetable the orders fixed, the delay in restoring the function during the third quarter was caused by the orders: but for the orders, no restoration was needed. The continuing-suspension analysis sets out the five pathways, including the restoration arithmetic by industry class.2
The Service's authority for the ground
The ground rests on one sentence of Chief Counsel Memorandum AM 2023-005 of June 30, 2023: "The residual delays caused by a governmental order in place during a prior calendar quarter will not constitute a governmental order in subsequent calendar quarters once the order has been lifted." AM 2023-005 says of itself: "This GLAM may not be used or cited as precedent." Its sentence asks whether a lifted order "constitute[s] a governmental order in subsequent calendar quarters." That is not the statutory question. The Suspension Clause asks whether the operation was "fully or partially suspended during the calendar quarter due to" orders, and this analysis answers it with orders in force during the quarter and with delays those orders caused.3
The Service's ground assumes a quarter in which the orders had ended. The Federal Register for July, August and September 2021 records a quarter in which they had not, and a suspension the orders compelled did not end on the day the last order permitting its reversal took effect.
Two answers, and you should give both. First, name the orders that were in force during the quarter you claimed: for the third quarter of 2021, the quarter page lists them by jurisdiction, and the orders clock shows what was in force on any day. Second, if orders in earlier quarters dismantled part of your business and the reopening orders permitted you to restore it only on a schedule they fixed, the statute's word "suspended" includes that delay, on the definition the United States itself agreed to in Tri-State. Describe the delay as continuing suspension, name the orders that caused it, and do not use the letter's phrase.