Restaurants and Patisseries Longchamps v. Pedrick
| Decision Date | 28 September 1943 |
| Parties | RESTAURANTS AND PATISSERIES LONGCHAMPS, Inc., v. PEDRICK, United States Collector of Internal Revenue for Second District of New York. |
| Court | U.S. District Court — Southern District of New York |
Joel J. Weiner, of New York City, for plaintiff.
James B. M. McNally, U. S. Atty., for Southern District of New York, of New York City (Florence P. Shientag, of New York City, of counsel), for defendant.
Defendant moves for judgment dismissing the complaint upon the pleadings and an examination of the plaintiff before trial.
The action is to recover employment taxes alleged to have been erroneously and illegally assessed for the quarterly period beginning on April 1, 1942 and ending on June 30, 1942, and the question presented is whether payments made to plaintiff's employees were wages or "tips."
Plaintiff operates four restaurants in the City of New York and controls several others affiliated with it.
During the period for which refund is sought and for several years prior thereto, the plaintiff's restaurants made known to their patrons that "tipping" was not permitted; in fact it is conceded that if a waiter had accepted a tip, to the knowledge of the plaintiff, he would have been discharged. But in lieu of "tips" 10% of the customer's check was added thereto as a service charge, and the entire sum was collected and paid over to the plaintiff's cashier. No segregation of the service charge from other items on the check was made by the cashier. On the following day, all money collected on the previous day was deposited in a bank servicing the particular restaurant. On the day following the one on which the money was received, the restaurant checks were forwarded to the central office of the plaintiff where they were audited and verified, and the amounts received as service charges were apportioned, a certain percentage of the amount attributable to food was credited to the bus boy; a certain percentage of the amount attributable to drinks, served at the table, was credited to the bartender, and the balance of the service charge was credited to the waiter under the heading "Commissions" on the "Commission Sheet." On the time sheet these amounts were entered under the heading "Commissions"; the payroll record indicated these amounts as "Commissions" and the ledger entries were headed "Waiters' Commissions." The money so credited to the waiters was retained by the plaintiff until the Thursday after the Friday following...
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U.S. v. Conforte
...the tip be a voluntary payment in an amount, and to a person, designated by the customer. Restaurants and Patisseries Longchamps, Inc. v. Pedrick, 52 F.Supp. 174, 174-75 (S.D.N.Y.1943); 8A J. Mertins, The Law of Federal Income Taxation § 47A.04 (1978). This element is also absent; contribut......
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78 Hawai'i 351, Heatherly v. Hilton Hawaiian Village Joint Venture
...service charges fall within the applicable statutory definition of wage. For example, in Restaurants and Patisseries Longchamps, Inc. v. Pedrick, 52 F.Supp. 174 (S.D.N.Y.1943), the plaintiff brought an action to recover employment taxes that it alleged were erroneously assessed. The plainti......
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Weinberg v. D-M Restaurant Corp.
...The United States District Court for the Southern District of New York reached a result similar to Beaman in Restaurants & Patisseries Longchamps v. Pedrick, D.C. 52 F.Supp. 174, but noted (at pp. 174-175) that "A patron in a restaurant is under no compulsion to leave a 'tip' " (see, also, ......
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Beaman v. Westward Ho Hotel Co.
...for employment * * *.' This definition seems no more sweeping than our own. In the case of Restaurants and Patisseries Longchamps, Inc. v. Pedrick, 52 F.Supp. 174, the United States District Court for the Southern District of New York applied it to facts similar to these. In that case the r......