Amendment #17 to H4879

Food Donation Liability Protection and Deduction

Mrs. Kane of Shrewsbury moves to amend the bill by adding the following new section:-

“SECTION XX.

Section 1. Section 328 of chapter 94 of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-

“No person who donates food, including open-dated food whose date has passed, to a nonprofit corporation for distribution or serving by such nonprofit corporation without charge or at a charge sufficient only to cover the cost of handling such food, or to any other person, shall be liable for civil damages for any injury arising out of the condition of such food; provided, however, that at the time of donation such food is not misbranded and is not adulterated and has not been manufactured, processed, prepared, handled or stored in violation of applicable regulations of the department of public health; and provided, further, that such injury is not the result of gross negligence, recklessness or intentional misconduct of the donor or any person employed by or under the control of the donor.”

Section 2. Section 328 of chapter 94 of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by inserting after the third paragraph the following paragraph:-

“No food establishment, as defined in 105 CMR 590 et seq., which distributes or serves food without charge or at a charge sufficient only to cover the cost of handling such food, including open-dated food whose date has passed, shall be liable for civil damages for any injury arising out of the condition of such food; provided, however, that at the time of distribution or serving such food is not misbranded or adulterated or has not been manufactured, processed, prepared, handled or stored in violation of applicable regulations of the department of public health, and provided, further, that such injury is not the result of gross negligence, recklessness or intentional misconduct of the food establishment or any person employed by or under the control of the food establishment.”

Section 3. Chapter 63 of the General Laws, is hereby amended by inserting after section 38FF, as appearing in the 2016 Official Edition, the following section:-

Section 38GG. (a) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:

“Food crops”, grains, fruits, nuts, or vegetables.

“Nonprofit food distribution organization”, means an entity located in the commonwealth that is exempt from taxation under section 501(c)(3) of the Internal Revenue Code, as amended or renumbered, and organized with a principal purpose of providing food to the needy or selling food at a charge sufficient only to cover the cost of handling such food.

(2) For taxable years beginning on or after January 1, 2020, but before January 1, 2024, any business corporation engaged in the business of farming as defined under 26 C.F.R 1.175-3 that donates food crops grown by the business corporation in the commonwealth to a nonprofit food distribution organization shall be allowed a deduction from its net taxable income for the taxable year of the donation. The business corporation shall be allowed a deduction in an amount equal to the fair market value of such food crops donated by the business corporation to a nonprofit food distribution organization during the taxable year but not to exceed an aggregate deduction of $2,000 for all such donations made by the business corporation during such year.

(3) A deduction shall be allowed under this section only if (i) the use of the donated food crops by the donee nonprofit food distribution organization is related to providing food to the needy, (ii) the donated food crops are not transferred for use outside the commonwealth or used by the donee nonprofit food distribution organization as consideration for services performed or personal property purchased, and (iii) the donated food crops, if sold by the donee nonprofit food distribution organization, are sold at a charge sufficient only to cover the cost of handling such food.

(4) In order to claim any deduction under this section, the business corporation making the donation shall attach to the business’s income tax return a written certification prepared by the donee nonprofit food distribution organization. The written certification prepared by the donee nonprofit food distribution organization shall identify the donee nonprofit food distribution organization, the business corporation donating food crops to it, the date of the donation, the number of pounds of food crops donated, and the fair market value of the food crops donated. The certification shall also include a statement by the donee nonprofit food distribution organization that its use and disposition of the food crops complies with the requirements under paragraph 3.

(6) Deductions claimed by a partnership shall be allocated to the individual partners in proportion to their ownership or interest in such business entity.

(7) The commissioner shall develop guidelines implementing the provisions of this section."

Additional co-sponsor(s) added to Amendment #17 to H4879

Food Donation Liability Protection and Deduction