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National Restaurant Association - A look at charitable contributions' legal considerations

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A look at charitable contributions' legal considerations

Despite good-faith efforts, restaurants may face potential claims for their charitable contributions. Here are tips to help you avoid some potential legal problems and a description of certain factors that may be needed to deduct your contributions under the Federal Tax Code.

• Good-faith food donors are mostly protected from liability. The Bill Emerson Good Samaritan Food Donation Act, signed into law in 1996, for the most part protects food donors, individuals and nonprofit recipient agencies acting in good faith against liability, excepting only gross negligence and/or intentional misconduct.  

• Perishable and non-perishable foods may be donated. Donate foods that are in case lots or are canned or unopened and refrigerated to nonprofit organizations that provide food to needy individuals. Prepared perishable foods can be donated if appropriate steps are taken. Restaurant prepared food can be safely donated by proper handling with the U.S. Food Code and ServSafe® practices in place. The Food Donation Connection Harvest Program has specific HACCPs (hazard analysis critical control points) that address restaurant handling, food rescue transportation and recipient agency storage, thawing and reheating requirements. (The restaurant must hold prepared food at a temperature above 140 F until it is ready to donate. The food should then be rapidly cooled through the temperature danger zone and held below 40 F.) Frozen prepared food should be donated within seven days, and refrigerated food should be donated within 72 hours. 

• Remember that you may be entitled to a tax deduction for a contribution to a charitable organization under Internal Revenue Code Section 170(e). The Federal Tax Code provides a charitable contribution deduction for wholesome food that is properly saved and donated by a corporation (other than a subchapter “S” corporation) to a nonprofit organization that is qualified under Federal Tax Code Section 501(c)(3) (other than a private foundation), but only if the contribution is used as related to the exempt purposes of the done and used to care for the ill, needy, or infants. The donor must not receive cash or something else of value in return for the contribution, and the donor must also receive a written statement verifying the contribution, among other requirements. The tax deduction may be further qualified or limited under the Federal Tax Code, and so please check with your accountant or legal counsel as to all of the requirements.

Learn how you can find a charitable opportunity that’s a good fit for your restaurant, how community involvement boosts employee morale and how to promote your efforts effectively.

These tips are merely informational and not intended as legal advice. Please consult your attorney or accountant before taking any action on the information provided.

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