May 2, 2023
All Tax Articles

Restaurant gratuities (tips) are taxable for income tax and EI, and may be subject to GST/HST

Recent Court cases have confirmed, not only that tips to waiters are taxable, but also that if they are paid through the employer, they are subject to source withholdings, EI and CPP withholding. If they are mandatory gratuities, the employer must charge GST/HST on them.

In Ristorante A Mano Ltd., 2022 FCA 151, a restaurant collected tips that were paid by credit card, and distributed them to the waiters (after taking off a processing fee to recover credit-card charges, and a further amount for the kitchen staff). The CRA took the view that these payments were part of the waiters’ income, not only for income tax purposes, but also for calculating the Employment Insurance premiums the restaurant had to pay, and the Canada Pension Plan contributions it was required to make for its employees. The CRA assessed the restaurant accordingly, and the restaurant appealed.

Both the Tax Court of Canada and, on appeal, the Federal Court of Appeal ruled in the CRA’s favour.

In another recent case, 1410109 Ontario Ltd., 2022 TCC 141, a company operated a banquet hall in Ontario. In its contracts and invoices for weddings and other events, the company charged an automatic 15% “gratuities” on its fees, and paid this money out to the manager, chef and serving staff. The CRA assessed the company for not charging HST on the gratuities, and the company appealed.

The Tax Court of Canada again ruled in the CRA’s favour. The 15% was not a gift from the patrons to the servers, as the company claimed. Rather, it was required by the contract, and thus formed part of the “consideration” to which 13% HST applied. Thus, the company was liable for not collecting and remitting HST on all the “gratuities”.

This letter summarizes recent tax developments and tax planning opportunities from a third-party affiliate; however, we recommend that you consult with an expert before embarking on any of the suggestions contained in this blog post, which are appropriate to your own specific requirements. Please feel free to get in touch with Lee & Sharpe to discuss anything detailed above, we would be pleased to help.
Sandy J. Lee

Hello my name is Sandy Lee, I am a partner at Lee & Sharpe.

Related Posts

Want to hear more?
Subscribe to our monthly newsletter below

Thank you! Your submission has been received!

Oops! Something went wrong while submitting the form