STATE OF NEW YORK
________________________________________________________________________
3394
2019-2020 Regular Sessions
IN ASSEMBLY
January 29, 2019
___________
Introduced by M. of A. ORTIZ, JONES -- Multi-Sponsored by -- M. of A.
COLTON, LUPARDO -- read once and referred to the Committee on Ways and
Means
AN ACT to amend the tax law, in relation to establishing business fran-
chise and personal income tax credits for businesses that donate
prepared food
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Section 210-B of the tax law is amended by adding a new
2 subdivision 53 to read as follows:
3 53. Prepared food donation credit. (a) A qualifying taxpayer shall be
4 allowed a credit against the tax imposed by this article equal to twen-
5 ty-five percent of the taxpayer's eligible charitable food donation.
6 (b) For purposes of this subdivision, the following terms have the
7 meanings given:
8 (1) "eligible charitable food donation" means a contribution of
9 prepared food allowable as a charitable deduction for the taxable year
10 under section 170(a) of the Internal Revenue Code, subject to the limi-
11 tations of section 170(b) of the Internal Revenue Code, and determined
12 without regard to whether or not the taxpayer itemizes deductions;
13 (2) "prepared food" means food that meets all quality and labeling
14 standards imposed by federal, state, and local laws and regulations even
15 though the food may not be readily marketable due to appearance, age,
16 freshness, grade, size, surplus, or other conditions, and includes:
17 (i) food which is cooked or heated by the qualifying taxpayer;
18 (ii) two or more ingredients mixed together to be eaten as a single
19 item; or
20 (iii) any ingredients supplied for ingestion or chewing by humans that
21 are consumed for their taste or nutritional value;
22 (3) "qualifying taxpayer" means any restaurant making a charitable
23 food donation in New York; and
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07078-01-9
A. 3394 2
1 (4) "restaurant" means any facility:
2 (i) which is operated for profit;
3 (ii) where the usual and customary business is the serving of meals to
4 consumers;
5 (iii) which has a kitchen within the facility; and
6 (iv) which receives at least fifty percent of its gross receipts from
7 the sale of prepared food.
8 (c) Application of credit. The credit allowed under this subdivision
9 for any taxable year may not reduce the tax due for such year to less
10 than the amount prescribed in paragraph (d) of subdivision one of
11 section two hundred ten of this article. However, if the amount of cred-
12 it allowed under this subdivision for any taxable year reduces the tax
13 to such amount or if the taxpayer otherwise pays tax based on the fixed
14 dollar minimum amount, any amount of credit thus not deductible in such
15 taxable year will be treated as an overpayment of tax to be credited or
16 refunded in accordance with the provisions of section one thousand
17 eighty-six of this chapter. Provided, however, no interest will be paid
18 thereon.
19 § 2. Subparagraph (B) of paragraph 1 of subsection (i) of section 606
20 of the tax law is amended by adding a new clause (xliv) to read as
21 follows:
22 (xliv) Prepared food donation Amount of credit under
23 credit under subdivision fifty-three
24 subsection (jjj) of section two hundred ten-B
25 § 3. Section 606 of the tax law is amended by adding a new subsection
26 (jjj) to read as follows:
27 (jjj) Prepared food donation credit. (1) A qualifying taxpayer is
28 allowed a credit against the tax imposed by this article equal to twen-
29 ty-five percent of the taxpayer's eligible charitable food donation. The
30 credit may not exceed the taxpayer's liability for tax and may not be
31 carried forward to any other taxable year.
32 (2) For purposes of this subdivision, the following terms have the
33 meanings given:
34 (A) "eligible charitable food donation" means a contribution of
35 prepared food allowable as a charitable deduction for the taxable year
36 under section 170(a) of the Internal Revenue Code, subject to the limi-
37 tations of section 170(b) of the Internal Revenue Code, and determined
38 without regard to whether or not the taxpayer itemizes deductions;
39 (B) "prepared food" means food that meets all quality and labeling
40 standards imposed by federal, state, and local laws and regulations even
41 though the food may not be readily marketable due to appearance, age,
42 freshness, grade, size, surplus, or other conditions, and includes:
43 (i) food which is cooked or heated by the qualifying taxpayer;
44 (ii) two or more ingredients mixed together to be eaten as a single
45 item; or
46 (iii) any ingredients supplied for ingestion or chewing by humans that
47 are consumed for their taste or nutritional value;
48 (C) "qualifying taxpayer" means any restaurant making a charitable
49 food donation in New York; and
50 (D) "restaurant" means any facility:
51 (i) which is operated for profit;
52 (ii) where the usual and customary business is the serving of meals to
53 consumers;
54 (iii) which has a kitchen within the facility; and
55 (iv) which receives at least fifty percent of its gross receipts from
56 the sale of prepared food.
A. 3394 3
1 (3) Credits allowed to a partnership, a limited liability company
2 taxed as a partnership, an S corporation, or multiple owners of property
3 are passed through to the partners, members, shareholders, or owners,
4 respectively, pro rata to each partner, member, shareholder, or owner
5 based on their share of the entity's income for the taxable year.
6 (4) Application of credit. If the amount of the credit allowed under
7 this subsection for any taxable year shall exceed the taxpayer's tax for
8 such year, the excess shall be treated as an overpayment of tax to be
9 credited or refunded in accordance with the provisions of section six
10 hundred eighty-six of this article, provided, however, that no interest
11 shall be paid thereon.
12 § 4. This act shall take effect immediately and shall apply to taxable
13 years beginning on or after January 1, 2020.