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September 21, 2020

What to expect in Washington (September 21)

Senate Majority Leader Mitch McConnell (R-KY) announced following the death of Supreme Court Justice Ruth Bader Ginsburg September 18, "Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise. President Trump's nominee will receive a vote on the floor of the United States Senate." President Trump tweeted September 19: "We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!" The President said this morning he could name a nominee later this week, perhaps Friday or Saturday.

Republican Senators Susan Collins (R-ME) and Lisa Murkowski (R-AK) oppose proceeding with a vote before the election. Other members asserted their support for moving forward, including Senators Rob Portman (R-OH) and Roy Blunt (R-MO).

Democrats want to wait until next year to fill the seat. The House doesn't vote on the nomination, but Speaker Pelosi said in terms of a response to Senate action before then, "we have our options. We have arrows in our quiver that I'm not about to discuss right now, but the fact is we have a big challenge in our country. This president has threatened to not even accept the results of the election." The September 30 government funding deadline is not one of those arrows, she said on ABC's This Week, even amid some calls to use it as leverage. "None of us has any interest in shutting down government. That has such a harmful and painful impact on so many people in our country. So, I would hope that we can just proceed with that," Speaker Pelosi said. "There is some enthusiasm among some exuberance on the left to say, 'let's use that,' but we're not going to be shutting down government."

Like Democratic presidential nominee Joe Biden, Speaker Pelosi cast GOP expedience on filling the seat through the lens of health care during the pandemic, saying, "the President is rushing to make some kind of a decision because November 10th is when the arguments begin on the Affordable Care Act. He doesn't want to crush the virus. He wants to crush the Affordable Care Act."

The Supreme Court development has cut the odds of the Affordable Care Act's survival in a lawsuit that was once dismissed as a long shot. Few observers had believed the Supreme Court would overturn or significantly roll back the law in a case (State of California, et. al. vs. State of Texas, et. al.) that the justices will hear exactly one week after Election Day. But the vacancy now increases chances that the high court could undercut Obamacare's insurance protections for pre-existing conditions, especially if President Trump can quickly install a new justice, or even drag out the legal fight.


Mark Kelly, the Democratic Senate candidate in Arizona, could take office as soon as November 30 if he prevails in the election against Senator Martha McSally (R-AZ), who was appointed to the seat (previously held by John McCain) and therefore could be replaced as soon as results are certified, several news outlets reported. The development could affect Senate consideration of a Supreme Court nominee and other business in a lame-duck session.

An NBC/WSJ poll released yesterday showed Democratic nominee Biden leading President Trump 51% to 43%, with more than 50% of voters "disapproving of Trump's job performance and with Trump holding the advantage on the economy and Biden holding the edge on the coronavirus."

Biden leads 48%-46% in Florida in a new CBS poll, while Trump is ahead 48%-46% in Texas.

Today's Wall Street Journal reported, "President Donald Trump's campaign cash advantage has evaporated as Democratic presidential nominee Joe Biden's team started the month with $466 million in the bank, about $141 million more than the president's re-election effort."


Released this morning were IRS final and proposed regulations on ownership attribution under IRC Section 958. IRS noted that IRC Section 958(b)(4), which addressed IRC Section 318(a)(3)(A), (B) and (C) (providing for so-called "downward attribution"), was repealed by the Tax Cuts and Jobs Act, meaning "stock of a foreign corporation owned by a foreign person can be attributed to a United States person under section 318(a)(3) for various purposes, including for purposes of determining whether a United States person is a U.S. shareholder of the foreign corporation and, therefore, whether the foreign corporation is a CFC."

On Friday, September 25, is the EY Webcast, "Tax in the time of COVID-19: Update on legislative, economic, regulatory and IRS developments," at 12:00 p.m. ET. The coronavirus (COVID-19) and the resulting economic crisis have made reacting to tax and trade developments more complicated and more difficult. Panelists will provide updates on: (i) the US legislative and economic landscape; (ii) breaking developments — federal and state; and (iii) what's happening at the IRS. Register.


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For additional information concerning this Alert, please contact:
Washington Council Ernst & Young
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