Understanding and guidance on surcharges

Tips

Note: Highlighted words or sections indicate new or updated material from the last version of this guidance.

Due to a myriad of legislative and court decisions, some restaurants in California have elected to add a surcharge to their receipts to defray increased costs incurred over the last several years.

The increased costs of operating a restaurant can be attributed to minimum wage increases, health care, paid sick leave, restrictive scheduling, cost of food and supplies and increased pay equity between traditionally tipped employees and heart of the house employees.  As such, these surcharges need to be analyzed for taxation purposes and legality as to how they are implemented.

First, let us think about how surcharges affect a company from a tax and reporting perspective. Starting in 1994, many restaurants have benefited from being allowed to apply a general business credit toward a portion of the employer’s Social Security and Medicare taxes paid with respect to their employees’ cash tip earnings (IRC 45 B). However, the policy set forth in Rev. Rule 2012-18 means that the credit would not apply with respect to surcharges, because these mandatory charges do not qualify as tips.

On December 23, 2016, the California State Board of Equalization (“BOE”) made it clear that surcharges like a service charge are a taxable event. The BOE states that: “The Revenue and Taxation Code (RTC) provides that sales tax is imposed on the gross receipts from the retail sales of tangible personal property in this state, unless the sale is specifically exempted from taxation by statute. The sales tax is imposed upon the retailer for the privilege of selling tangible personal property at retail in California. RTC section 6012, ‘Gross receipts,’ provides that the taxable gross receipts include all amounts received with respect to the sale, with no deduction for the cost of the property sold, materials used, labor or service cost, or any other expense of the retailer passed on to the customer. As explained by RTC section 6012, any expense of a restaurant passed on to customers in the form of a surcharge must be included in taxable gross receipts. Since there are no specific sales and use tax exemptions for a surcharge imposed by a restaurant, retailers may not claim the cost of the surcharge as a deduction on their Sales and Use Tax return. Therefore, restaurants that include a separate surcharge on customer bills must include the surcharge amount in the calculation of tax.”

In light of this guidance, to the extent a restaurant elects to distribute a surcharge to its employees, the surcharge will be treated and must be reported as Salaries and Wages on the business tax return. Another issue to consider is that an employer who pays out a portion of the surcharges to employees may have to recalculate its employees’ overtime rates (if the employees work more than 40 hours in a week or 8 hours a day for businesses in California). As any distributed surcharges are wages, that money would count toward an employee’s regular rate of pay and therefore must be factored into the overtime rate calculation.

Starting in 2017, comments by several City Attorneys like San Diego, as well as some letters, have raised issues concerning surcharges. Specifically, some City Attorneys have raised the manner under which surcharges are communicated to customers. Also, in 2017, there were 15 cases filed in San Diego Superior Court asserting the illegality of the surcharges and the manner of disclosure, generally citing California Business and Professions Code 17500 et seq., 17200 et seq. and California Civil Code 1770, and the Consumer Legal Remedies Act. These lawsuits claimed these restaurants were in violation of consumer protection laws including false advertising, unfair competition and improperly disclosing the prices on their menus. It was further claimed that a failure to clearly and conspicuously communicate a surcharge might render the stated price of a food item untrue and misleading under California law. TheThe San Diego City Attorney has made some statements that such charges are being investigated and may result in prosecution under the guise of consumer protection for false advertising.

In a ruling on November 16, 2018, a San Diego Superior Court judge ruled in granting judgment for the restaurant at issue that the “undisputed evidence establishes that the surcharge is not unlawful as a matter of law.” Further, the Court concluded the restaurant “made adequate and non-misleading disclosures about the surcharge.” Subsequent judgments were entered in favor of other restaurants by the same judge in December 2018 and January 2019 based on the November 2018 ruling; whereby the ruling of the Court was adopted as to the legality of the use of surcharges by restaurants.

As a result, even though surcharges are a legal and allowable option for restaurants to help defray the recent increases in costs, there are some approaches that should be considered to avoid potential litigation. There are no regulations or laws that state how a restaurant should specifically and clearly disclose the existence of a surcharge. However, to try and prevent the filing of an adverse claim, it would be prudent that a restaurant discloses up front that the meal [food and drink item(s)] is subject to a surcharge and state the percentage of the surcharge on the menu, in a prominent sign or posting, on web pages, as well as on advertising materials, either electronic or paper. Also, even though not specifically required, it would be prudent that the disclosure stand alone and not be contained in a statement about other aspects of the business. Some restaurants have elected to highlight the disclosure in a different or larger font or color as a means to try and alleviate concerns raised by governmental entities. That said, there is no mandatory way that a surcharge should be disclosed to a customer. In summary, there is no legislative or statutory guidance as to how a surcharge should be disclosed.

There is no requirement that a sign be used to disclose a surcharge, but having a surcharge disclosure sign is another means of avoiding a consumer claim. If a restaurant elects to use signage, there is also no requirement about the size of font on any sign posted in a restaurant about a surcharge. However, if a sign is used, the guidelines set forth under California’s Proposition 65 law about disclosure of potentially hazardous materials might be used as a guidepost. Under Proposition 65, the signs are to be “conspicuous” enough that they are “likely to be read and understood by an ordinary individual under customary conditions of use and purchase.” Therefore, having this as a goal would help a restaurant defend and prevent any legal action.

Restaurants who elect to use a sign should consider a sign about a surcharge and percentage where patrons are likely to see it as they enter the restaurant. Like approved signs in Proposition 65 cases, a sign no smaller than 10 inches wide by 10 inches high or a horizontal strip marker no smaller than 10 ½ inches wide by 1 ¼ inches high bearing the surcharge information in at least a 36-point font would arguably comply with the “conspicuous” requirements. Also, if a fair amount of the business is take-out or occurs at a register, the placing of a disclosure sign at the register would likewise be another preventive step for notice purposes.

As to menus, any statement as to surcharges should be separate from other information. Some restaurants have elected to use bold font, a different color or italics. However, none of this is required. It is merely one option.  In addition, the font as to the disclosure should not be smaller than other items printed on menus or electronic media and certainly at least the size of the menu items and the prices. These steps should help defray any claims that the restaurant did not clearly and conspicuously disclose the existence of a surcharge.

Many San Francisco restaurants implemented a surcharge (i.e., an extra fee or cost) on the goods or services they sell to customers to cover, in whole or in part, the expense of complying with the Health Care Security Ordinance passed in 2008. This surcharge was specifically designated to defray the costs of the local health care ordinance. Some restaurants faced litigation and penalties when these surcharges were not utilized to pay for the cost of health care. There is now a requirement in San Francisco that the business on an annual basis disclose: 1) the amount collected from the surcharge for covered employee health care and 2) the amount spent on covered employee health care. Therefore, based on these lessons learned, if a restaurant elects to impose a surcharge, it should consider disclosing it in a broad manner rather than designating it for a particular cost item. A more specific designation could subject a restaurant to show that the surcharge collected must be only used for that item e.g., the cost of health care to employees. The broader the language, the more flexibility the restaurant has in how to utilize the money collected from the surcharge.

Overall, surcharges are legal as supported by the recent court ruling. However, restaurants should implement surcharges with an eye toward prevention of any claims for consumer fraud, false advertising, unfair business practices or improper utilization of the surcharge. Also, there is no mandate by California or any California municipality that requires that a surcharge be added to a restaurant bill. Therefore, the restaurant has wide discretion as to how it discloses and communicates the use of a surcharge, but the disclosure should be sufficiently conspicuous to a reasonable consumer.

If a restaurant elects to implement a surcharge, at a minimum the fact that there is a surcharge must be disclosed on the receipt as “SURCHARGE” and the restaurant must charge sales tax on all service charges and any separate surcharge line item, regardless of any amount that might be paid to the employee.

Other steps a restaurant should consider implementing, even though not currently required or mandated, as a means to prevent a legal claim:

  • If a sign is utilized, take steps to place the sign at an entrance and/or at a check-out area, disclosing the surcharge
  • The use of the words “mandate” or “mandatory” when describing the surcharge, while not illegal, has been misinterpreted and has been criticized by some customers and political officials.
  • Disclose the surcharge on menus, on web sites and in advertisements, both paper and electronic, when the prices at a restaurant are disclosed
  • Make sure the disclosure on the menu is at least the same font and size as the menu items and prices
  • Keep any rationale as to the reason for the surcharge as broad as possible, e.g., to defray the increased cost of operations

Also, it is important to consult with your tax advisor or tax attorney to determine the proper method of taxing surcharges and paying your employees if a portion of the surcharge is distributed to the employees. It is also highly recommended to consult with qualified legal counsel concerning any questions about surcharges and how to disclose them to customers.

wilsonelser.gifThis report was reviewed for legal accuracy and updated in 2019 by Wilson Elser Moskowitz Edelman & Dicker LLP.