Concord Monitor: N.H. Senate may try to block state from taxing restaurants for tips to employees
By BEN LEUBSDORF
(Published in print: Wednesday, May 15, 2013)
The Senate may try to block New Hampshire’s tax collecting agency from requiring restaurants and other businesses to count tips as wages when calculating their tax bills under the Business Enterprise Tax.
“Some of us believe that . . . money should not be taxed with the BET,” said Sen. Bob Odell, a Lempster Republican.
Odell and other members of the Senate Ways and Means Committee, which he chairs, yesterday discussed a proposal to block the Department of Revenue Administration from requiring businesses to pay the BET on tips collected by their employees. But they didn’t take a vote – Odell indicated the language needs more work and could be attached as an amendment to a House bill, perhaps even the state budget, in the coming weeks.
The BET is a 0.75 percent levy on all compensation, interest and dividends paid or accrued by a business.
Since it was created in 1993, the BET has excluded noncash tips and cash tips of less than $20 a month from the definition of “compensation.” The New Hampshire Lodging & Restaurant Association says related administrative rules indicated employee tips didn’t count as compensation until a 2008 change that DRA officials say brought the rule back into line with the statute’s language.
The New Hampshire Business Review reported this month that the Department of Revenue Administration had contacted a number of restaurants to inform them that, going forward, the BET should be calculated based on employees’ gross income, which includes tips, instead of employees’ hourly wage rates.
Melinda Cyr, a Department of Revenue Administration tax policy analyst, said yesterday the agency noticed some businesses were paying the BET on all tips, some were paying it on some tips and many were paying nothing for tips on their BET bills.
The agency’s goal, she said, is consistent enforcement of the law. Tips totaling more than $20 a month, she said, do count as compensation.
“It’s not a new tax,” Cyr said. “It’s something that, when we look for compliance, we want to make sure everybody’s paying their fair tax across the board.”
But Chris McDonough, who owns several restaurants throughout the state, told the committee that his businesses have never included tips when calculating the BET since customers, not the restaurant, pay the tips.
“They should not be included because they are not compensation paid by the employer to the employee. They’re paid directly from the customer to the employee,” McDonough said. “Therefore, we have no control over that compensation.”
The New Hampshire Republican Party and two conservative groups, Citizens for a Strong New Hampshire and Americans for Prosperity, also expressed support for barring the revenue agency from applying the BET to tips, as did House Minority Leader Gene Chandler, a Bartlett Republican.
“This stunning and new interpretation of a five year old regulation represents a major new tax increase on the backs of many New Hampshire small businesses,” said Greg Moore, Americans for Prosperity’s state director, in a statement.
A draft amendment discussed yesterday, which would limit the BET to compensation “paid directly or accrued by the business enterprise,” had bipartisan support. It was sponsored by Odell, fellow Republican and Senate Majority Leader Jeb Bradley of Wolfeboro and the Ways and Means Committee’s two Democrats, Sens. Lou D’Allesandro of Manchester and Andrew Hosmer of Laconia.
Cyr said the Legislature has the prerogative to set policy, and Department of Revenue Administration officials could work with Odell on the amendment’s language. But she said the agency can’t offer an estimate of how much revenue the state might lose by excluding tips from compensation calculations under the BET.
Jeff McLynch, executive director of the liberal-leaning New Hampshire Fiscal Policy Institute, asked the Ways and Means Committee to not offer such a carve-out.
“The amendment would undermine the basic purpose of the BET, eating away at its base and potentially beginning to compromise the stability that it brings to the tax system,” he said.