Peoria Hotel Co. v. Department of Revenue

Mr. JUSTICE SCOTT delivered the opinion of the court: This is an appeal by Hilton Hotel from an order of the Circuit Court of Peoria County which upheld an administrative decision of the Department of Revenue which found that Hilton was liable for a retailers’ occupation tax assessment on banquet gratuities collected from customers. In July of 1976 a Mr. Sievers of the Department of Revenue conducted an audit of the Hilton Hotel in Peoria for the period of July 1, 1973, through June 30, 1976. Subsequent to this audit Hilton was notified that it was liable for unpaid State and municipal retailers’ occupation tax in the sum of $20,669.68 including penalty and interest. It was the position of the Department that the tax liability resulted from a deduction claimed by Hilton for gratuities collected from banquet customers. Evidence adduced during the hearing of this case establishes that the collection of gratuities at banquets was governed by a contract in effect between Hilton and its employees union.. Pursuant to the terms of the contract Hilton agreed to seek a 15 percent gratuity on all banquet functions. Of this 15 percent added to the check, 90 percent was paid to service personnel (waitresses); 6M percent was paid to the executive catering staff; and 3Jz percent was retained by Hilton to cover “overhead,” i.e., cost of a paymaster issuing checks, cost of personnel to “clock” the employees, and cost to collect the gratuities and to cover bad checks. It was further established by the evidence that dining customers usually leave a tip with the employee who attends his or her table, and when left in such a manner the gratuities are discretionary and do not become a part of the employer’s gross receipts. It was the testimony of the general manager of Hilton that the union contract provision pertaining to gratuities was not mandatory and further that the 15 percent gratuity charge was not mandatory on customers in that when negotiating for a banquet agreement the customer had the discretion to discuss the amount of gratuity to be paid or could reject the paying of any gratuity. It was the general manager’s testimony that a banquet agreement could be entered into where there would be no agreed gratuity and in that event the service personnel would have the choice of passing the plate. A further recitation as to the Department of Revenue’s regulations and the evaluation of its departmental rules concerning the applicability of the retailers’ occupation tax to gratuity charges will be noted as we address the issues raised in this appeal. The first issue raised for determination is Hilton’s contention that the gratuities collected were discretionary rather than mandatory payments made by the banquet customers. We note that both parties are in agreement that the pivotal question to be determined is whether the gratuity charges were mandatory or discretionary. In addressing our attention to a determination of the mandatory or discretionary question it is clear that prior to 1974 it was the policy of the Department to consider gratuity charges as not being a part of a taxpayer’s gross receipts and therefore not subject to retailers’ occupation tax if two conditions were met: (1) the charge was in fact stated separately on each bill, and (2) all of the proceeds were in fact distributed to the employees who would normally have received the tips or gratuities. This policy of the Department was overruled by the decision in Cohen v. Playboy Clubs International, Inc. (1974), 19 Ill. App. 3d 215, 311 N.E.2d 336. In Cohen, the appellate court, First District, held that a mandatory gratuity or service charge made in connection with the selling of food and beverages is includable within and not deductible from the selling price of food and drinks. In Cohen it was argued that the separately stated service charge which specifically states “includes gratuities” is in effect a tip or gratuity. The reviewing court dispelled the “separately stated charge” guideline which had been in effect prior to 1974 by stating: “This argument is without merit. The service charge, although a fixed percentage of the bill, is mandatory. The customer has no discretion as to the decision to pay or not to pay or the amount of the payment. He may or may not leave an additional amount as a gratuity. If he does, that amount is within his personal discretion. However, the service charge is not in any sense gratuitous.” 19 Ill. App. 3d 215, 220-21, 311 N.E.2d 336, 340. Subsequent to the holding in Cohen the test as to whether gratutities were taxable was whether they were of a mandatory or of a discretionary character. This test was recognized and confirmed in Fontana D’Or, Inc. v. Department of Revenue (1976), 44 Ill. App. 3d 1064, 358 N.E.2d 1283. In the instant case it can only be concluded that the 15 percent gratuity collected by Hilton was a mandatory charge payable by banquet customers. Hilton was obligated to seek a 15 percent gratuity, and while it is argued by the hotel that this was a negotiable matter, the record fails to reveal any instance during the three-year period in question when there was any variation from the 15 percent charge or that there was ever a refusal to pay this amount. The individual diners or customers had no control over the amount of the gratuity to be charged or how it was to be disbursed. It was aptly stated by the Supreme Court of Arizona that: “It is common knowledge that patrons do not as a rule tip caterers, kitchen employees, secretaries and others with whom they do not come into direct contact. A tip is in law, if not always in fact, a voluntary payment. It is not the subject of negotiation or contract, as are the ‘service charges’ here.” Beaman v. Westward Ho Hotel Co. (1960), 89 Ariz. 1, 4-5, 357 P.2d 327, 329. The gratuities in question in the instant case were not dispersed in their entirety to the waitresses, since a portion of the amount paid to Hilton was received by the executive catering staff, a paymaster and a “checker or docker” of employees. A portion was also used to collect the gratuities and bad debts. A banquet patron had no knowledge as to the distribution of the gratuity which he paid, and we dare say he had no desire to reward or pay anyone other than the waitresses who waited upon him and provided personal service to him in the dispensing of food and libation. The 15 percent gratuity charges by Hilton, being mandatory in nature, were properly determined to be a part of Hilton’s gross receipts and hence subject to an assessment of the retailers’ occupation tax. Hilton further argues that the Department applied changes in its administrative policy regarding gratuities retroactively and in doing so they acted illegally and the State is barred from collecting the taxes. Specifically it is Hilton’s argument that after the Cohen decision of April 18, 1974, the Department of Revenue changed its policy regarding the taxation of gratuities, yet failed to promulgate its changes so that taxpayers could be in conformity with them. The Department’s position, inter alia, is that the filing of the Cohen decision provided sufficient notice as to its change of policy. We need not determine whether this position of the Department is correct or incorrect, since Hilton failed to comply with the Department’s regulations both prior to and during the time span of the audit, to wit, July 1,1973, through June 30,1976. Stated otherwise, if we assume ad arguendo that because of lack of notice Hilton was not compelled to follow the policy changes engendered by the case of Cohen, then it follows that they should have followed the regulations in esse prior to Cohen. As we have previously noted, those regulations provided that gratuity charges were not to be a part of the taxpayer’s gross receipts and therefore not subject to retailers’ occupation tax if both of the following conditions were met, (1) the charge was in fact separately stated on each bill, and (2) all of the proceeds were in fact distributed to the employees who would normally have received tips or gratuities. The second condition was never met by Hilton since the gratuities were never distributed in their entirety to the hotel’s service personnel. The record discloses that it was the testimony of the hotel’s áuditor that a portion of the gratuities collected was used for the payment of overhead costs and that the procedure had been followed for the 18 years which preceded the hearings conducted in the year 1977. Hilton further argues that it was treated in the past audits as though the gratuities were proper deductions, and relying upon such treatment, it should not be liable for the taxes in question. Hilton disclaims that this argument is based upon the doctrine of estoppel, but regardless of semantics the gist of the argument is that based upon past action or lack of action by the Department, the State is estopped from collecting the taxes found to be due for the period of July 1, 1973, through June 30, 1976. Public policy generally opposes the application of an estoppel against the State where public revenues are involved. (See Austin Liquor Mart, Inc. v. Department of Revenue (1972), 51 Ill. 2d 1, 280 N.E.2d 437.) It has further been held by a reviewing court in our State that certain transactions were taxable despite the fact that the Department of Revenue for over 30 years saw fit not to tax the same. (See Illinois Power Co. v. Mahin (1977), 49 Ill. App. 3d 713, 364 N.E.2d 597; In re F. W. Koenecke & Sons, Inc. (7th Cir. 1976), 533 F.2d 1020.) We cannot agree with Hilton that the law bars the State from collecting the taxes in question because the Department of Revenue failed to take such action in the years preceding the audit in question. For the reasons set forth the judgment of the Circuit Court of Peoria County is affirmed. Affirmed. STENGEL, J., concurs.