S T A T E O F N E W Y O R K
________________________________________________________________________
2648
2017-2018 Regular Sessions
I N A S S E M B L Y
January 20, 2017
___________
Introduced by M. of A. ORTIZ -- 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:
Section 1. Section 210-B of the tax law is amended by adding a new
subdivision 52 to read as follows:
52. PREPARED FOOD DONATION CREDIT. (A) A QUALIFYING TAXPAYER SHALL BE
ALLOWED A CREDIT AGAINST THE TAX IMPOSED BY THIS ARTICLE EQUAL TO TWEN-
TY-FIVE PERCENT OF THE TAXPAYER'S ELIGIBLE CHARITABLE FOOD DONATION.
(B) FOR PURPOSES OF THIS SUBDIVISION, THE FOLLOWING TERMS HAVE THE
MEANINGS GIVEN:
(1) "ELIGIBLE CHARITABLE FOOD DONATION" MEANS A CONTRIBUTION OF
PREPARED FOOD ALLOWABLE AS A CHARITABLE DEDUCTION FOR THE TAXABLE YEAR
UNDER SECTION 170(A) OF THE INTERNAL REVENUE CODE, SUBJECT TO THE LIMI-
TATIONS OF SECTION 170(B) OF THE INTERNAL REVENUE CODE, AND DETERMINED
WITHOUT REGARD TO WHETHER OR NOT THE TAXPAYER ITEMIZES DEDUCTIONS;
(2) "PREPARED FOOD" MEANS FOOD THAT MEETS ALL QUALITY AND LABELING
STANDARDS IMPOSED BY FEDERAL, STATE, AND LOCAL LAWS AND REGULATIONS EVEN
THOUGH THE FOOD MAY NOT BE READILY MARKETABLE DUE TO APPEARANCE, AGE,
FRESHNESS, GRADE, SIZE, SURPLUS, OR OTHER CONDITIONS, AND INCLUDES:
(I) FOOD WHICH IS COOKED OR HEATED BY THE QUALIFYING TAXPAYER;
(II) TWO OR MORE INGREDIENTS MIXED TOGETHER TO BE EATEN AS A SINGLE
ITEM; OR
(III) ANY INGREDIENTS SUPPLIED FOR INGESTION OR CHEWING BY HUMANS THAT
ARE CONSUMED FOR THEIR TASTE OR NUTRITIONAL VALUE;
(3) "QUALIFYING TAXPAYER" MEANS ANY RESTAURANT MAKING A CHARITABLE
FOOD DONATION IN NEW YORK; AND
(4) "RESTAURANT" MEANS ANY FACILITY:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07762-01-7
A. 2648 2
(I) WHICH IS OPERATED FOR PROFIT;
(II) WHERE THE USUAL AND CUSTOMARY BUSINESS IS THE SERVING OF MEALS TO
CONSUMERS;
(III) WHICH HAS A KITCHEN WITHIN THE FACILITY; AND
(IV) WHICH RECEIVES AT LEAST FIFTY PERCENT OF ITS GROSS RECEIPTS FROM
THE SALE OF PREPARED FOOD.
(C) APPLICATION OF CREDIT. THE CREDIT ALLOWED UNDER THIS SUBDIVISION
FOR ANY TAXABLE YEAR MAY NOT REDUCE THE TAX DUE FOR SUCH YEAR TO LESS
THAN THE AMOUNT PRESCRIBED IN PARAGRAPH (D) OF SUBDIVISION ONE OF
SECTION TWO HUNDRED TEN OF THIS ARTICLE. HOWEVER, IF THE AMOUNT OF CRED-
IT ALLOWED UNDER THIS SUBDIVISION FOR ANY TAXABLE YEAR REDUCES THE TAX
TO SUCH AMOUNT OR IF THE TAXPAYER OTHERWISE PAYS TAX BASED ON THE FIXED
DOLLAR MINIMUM AMOUNT, ANY AMOUNT OF CREDIT THUS NOT DEDUCTIBLE IN SUCH
TAXABLE YEAR WILL BE TREATED AS AN OVERPAYMENT OF TAX TO BE CREDITED OR
REFUNDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION ONE THOUSAND
EIGHTY-SIX OF THIS CHAPTER. PROVIDED, HOWEVER, NO INTEREST WILL BE PAID
THEREON.
§ 2. Subparagraph (B) of paragraph 1 of subsection (i) of section 606
of the tax law is amended by adding a new clause (xliii) to read as
follows:
(XLIII) PREPARED FOOD DONATION AMOUNT OF CREDIT UNDER
CREDIT UNDER SUBDIVISION FIFTY-TWO
SUBSECTION (HHH) OF SECTION TWO HUNDRED TEN-B
§ 3. Section 606 of the tax law is amended by adding a new subsection
(hhh) to read as follows:
(HHH) PREPARED FOOD DONATION CREDIT. (1) A QUALIFYING TAXPAYER IS
ALLOWED A CREDIT AGAINST THE TAX IMPOSED BY THIS ARTICLE EQUAL TO TWEN-
TY-FIVE PERCENT OF THE TAXPAYER'S ELIGIBLE CHARITABLE FOOD DONATION. THE
CREDIT MAY NOT EXCEED THE TAXPAYER'S LIABILITY FOR TAX AND MAY NOT BE
CARRIED FORWARD TO ANY OTHER TAXABLE YEAR.
(2) FOR PURPOSES OF THIS SUBDIVISION, THE FOLLOWING TERMS HAVE THE
MEANINGS GIVEN:
(A) "ELIGIBLE CHARITABLE FOOD DONATION" MEANS A CONTRIBUTION OF
PREPARED FOOD ALLOWABLE AS A CHARITABLE DEDUCTION FOR THE TAXABLE YEAR
UNDER SECTION 170(A) OF THE INTERNAL REVENUE CODE, SUBJECT TO THE LIMI-
TATIONS OF SECTION 170(B) OF THE INTERNAL REVENUE CODE, AND DETERMINED
WITHOUT REGARD TO WHETHER OR NOT THE TAXPAYER ITEMIZES DEDUCTIONS;
(B) "PREPARED FOOD" MEANS FOOD THAT MEETS ALL QUALITY AND LABELING
STANDARDS IMPOSED BY FEDERAL, STATE, AND LOCAL LAWS AND REGULATIONS EVEN
THOUGH THE FOOD MAY NOT BE READILY MARKETABLE DUE TO APPEARANCE, AGE,
FRESHNESS, GRADE, SIZE, SURPLUS, OR OTHER CONDITIONS, AND INCLUDES:
(I) FOOD WHICH IS COOKED OR HEATED BY THE QUALIFYING TAXPAYER;
(II) TWO OR MORE INGREDIENTS MIXED TOGETHER TO BE EATEN AS A SINGLE
ITEM; OR
(III) ANY INGREDIENTS SUPPLIED FOR INGESTION OR CHEWING BY HUMANS THAT
ARE CONSUMED FOR THEIR TASTE OR NUTRITIONAL VALUE;
(C) "QUALIFYING TAXPAYER" MEANS ANY RESTAURANT MAKING A CHARITABLE
FOOD DONATION IN NEW YORK; AND
(D) "RESTAURANT" MEANS ANY FACILITY:
(I) WHICH IS OPERATED FOR PROFIT;
(II) WHERE THE USUAL AND CUSTOMARY BUSINESS IS THE SERVING OF MEALS TO
CONSUMERS;
(III) WHICH HAS A KITCHEN WITHIN THE FACILITY; AND
(IV) WHICH RECEIVES AT LEAST FIFTY PERCENT OF ITS GROSS RECEIPTS FROM
THE SALE OF PREPARED FOOD.
A. 2648 3
(3) CREDITS ALLOWED TO A PARTNERSHIP, A LIMITED LIABILITY COMPANY
TAXED AS A PARTNERSHIP, AN S CORPORATION, OR MULTIPLE OWNERS OF PROPERTY
ARE PASSED THROUGH TO THE PARTNERS, MEMBERS, SHAREHOLDERS, OR OWNERS,
RESPECTIVELY, PRO RATA TO EACH PARTNER, MEMBER, SHAREHOLDER, OR OWNER
BASED ON THEIR SHARE OF THE ENTITY'S INCOME FOR THE TAXABLE YEAR.
(4) APPLICATION OF CREDIT. IF THE AMOUNT OF THE CREDIT ALLOWED UNDER
THIS SUBSECTION FOR ANY TAXABLE YEAR SHALL EXCEED THE TAXPAYER'S TAX FOR
SUCH YEAR, THE EXCESS SHALL BE TREATED AS AN OVERPAYMENT OF TAX TO BE
CREDITED OR REFUNDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION SIX
HUNDRED EIGHTY-SIX OF THIS ARTICLE, PROVIDED, HOWEVER, THAT NO INTEREST
SHALL BE PAID THEREON.
§ 4. This act shall take effect immediately and shall apply to taxable
years beginning on or after January 1, 2018.