Senate Finance Committee Chairman Orrin Hatch (R-UT) is expected to release a modified mark of the "Tax Cuts and Jobs Act" soon that will include repeal of the Affordable Care Act (ACA) individual mandate. The Committee mark-up is scheduled to reconvene on November 15, 2017, with a walk-through of the modified mark, which is expected to include changes in addition to the mandate repeal.

Senate Majority Leader Mitch McConnell (R-KY) said that Republicans are "optimistic that inserting the individual mandate repeal would be helpful" for advancing the bill. The Congressional Budget Office has estimated that repeal of the mandate would reduce federal deficits by about $338 billion over the 2018 - 2027 period, generating savings that could offset the cost of other tax provisions.

Finance Democrats, already irritated that the modified mark had not been released, denounced the Committee process. "This major tax bill is now officially a moving target and it is an enormous departure from the way the Finance Committee has traditionally worked," Ranking Member Ron Wyden (D-OR) said, calling the mandate repeal an "ideological trophy." He said the development redefines the scope of the measure, saying, "This is now a major health care bill." The Committee did not agree to Wyden's request to extend the deadline for filing amendments.

The mark-up session had proceeded with a walk-through of the Chairman's Mark, as Democratic members aired concerns about alleged complexity, fairness, and potential loopholes in the plan. During the walk-through, Joint Committee on Taxation Chief of Staff Tom Barthold stated that there is a typo in the description of the original mark relating to the deduction for foreign-derived intangible income. Barthold clarified that the correct percentage is 50%, not 37.5%, "of the lesser of (1) the sum of its foreign-derived intangible income plus the amount of GILTI that is included in its gross income, or (2) its taxable income, determined without regard to this proposal."

After some discussion of whether the Mark's international tax provisions could encourage the shifting of intellectual property (IP) to foreign jurisdictions, Ranking Member Wyden said that delaying the reduction in the corporate rate for one year (until 2019) creates an incentive for companies to accelerate their deductions and delay their income. "That way they get their deductions against a 35% rate and their income is taxed at only 20%, creating another huge incentive to game the tax code in America," he said.

Senator Claire McCaskill (D-MO) asked of the tax plan generally, "What happened to the postcard? This is not simplification. This is incredibly complex." She added that complexity creates a "playground" for tax avoidance. McCaskill specifically cited examples of the disparity with which taxpayers in different industries and circumstances would benefit from the proposed 17.4% deduction for certain pass-through income.

Senator Ben Cardin (D-MD) suggested that the deduction for foreign-derived intangible income may not be World Trade Organization-compliant because it would encourage exports at a lower tax rate, "which seems to me is going to be a red light for the WTO." Senator Rob Portman (R-OH) said the provision was "carefully crafted to avoid that very problem." The provision targets intellectual property and WTO subsidy rules do not apply to IP, and so to the extent that the lower rate applies to IP income, which is the intention, "that's the end of the analysis," he said.

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