Recargo al consumo: the Peruvian restaurant service charge, explained properly
It is not compulsory for the restaurant to charge it, and no law requires 100% of it to reach the staff. It is a voluntary charge of up to 13%, agreed with the workers, and enforceable against you only if you were told about it before you ordered.
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Sunat · Peruvian State portal (gob.pe)
Checked 1 Oct 2026Next review 12 Mar 2027
Article 5.3 of the Consumer Code was read in the Third Official Edition published by Minjus.
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The text of the Fifth Provision of Decreto Ley 25988 is taken from official Sunat documents that quote it verbatim (Oficio 257-2003 and Informe 191-2019), because the 1992 edition of the official gazette is not online. The Indecopi ruling on preselected tips (1235-2024/SPC) was not read in the original file.
Where it comes from
From a final provision of a 1992 tax statute, Decreto Ley 25988. In one sentence it allows hotels and restaurants to set, in agreement with their workers, a service charge of up to 13%, and declares that what the workers receive under it is not remuneration.
That is the entire legal content. Everything else repeated about it is not written anywhere.
The three things almost everyone gets wrong
One: it is not compulsory. The decree’s verb is podrán — “may.” A restaurant can charge it or not charge it. When someone says “it’s obligatory by law,” they are confusing a legal authorisation with a legal mandate.
Two: no rule guarantees the money reaches the staff. The decree establishes what the money is not — not remuneration, not subject to social contributions, outside the VAT base — but says nothing about how it is split, how much each worker gets, whether the split must be published, or what happens if the establishment keeps part of it. The distribution is whatever was agreed. That is a regulatory gap, and presenting it as a guarantee for the waiter is, at best, a mistake.
Three: it is enforceable when you were told. Article 5.3 of the Consumer Code bars charging amounts split off from the final price, with one express exception: the recargo al consumo, provided it is disclosed “in a timely, accessible and visible way.” If they did that, it is part of the price and there is nothing to dispute. If they did not, there is a breach.
Charge, tip and “service”
| Compared on | Recargo al consumo | Tip | “10% service” |
|---|---|---|---|
| Legal basis | DL 25988, 5th provision | None — a pure gratuity | None of its own |
| Cap | 13% | — | The charge’s, if it is the charge |
| Enforceable? | Yes, if disclosed beforehand | Never | Only as a disclosed charge |
| Pre-selected? | — | Prohibited: coercive method | — |
On pre-selected tips in delivery apps: Indecopi has already ruled that setting a default tip and hiding the option to remove it is a coercive commercial method. The corrective measure was a S/ 0.00 default, with the tip asked only after delivery.
If you work in one of these places
- The agreement with workers is a requirement of the decree itself. It is not a charge the employer sets alone.
- What you receive is not remuneration: it does not count toward CTS, gratificaciones or pension contributions.
- It is fifth-category income for income tax purposes.
- If the employer charges it and does not hand over what was agreed, that is an employment matter, not a consumer one.
Calculate it
The service charge checker tells you whether the charge you were given meets both conditions: disclosed beforehand and within the 13% cap.
How to file
- Check the door and the menu before you sit downArticle 5 requires restaurants, bars and hotels to display price lists on the outside. If the charge exists, it must be disclosed there or on the menu — not appear for the first time on the bill.
- If it only showed up on the bill, say so there and thenThe issue is not the percentage. It is the absence of prior disclosure. That is the specific breach you can point to.
- Use the complaints book, as a reclamoDescribe it as a charge not disclosed in advance, citing article 5.3. Keep the receipt and photograph the menu or the sign.
- Report it to Indecopi if you want it sanctionedReclama Virtual conciliates. A sanctioning procedure requires a denuncia.
Want it drafted for you? Escrito listo — S/ 29 · available soon →
What people fail to ask in time
Did the restaurant have to show you its prices before you sat down at the table?
Find out before it matters →What most people believe — and what the law says
The recargo al consumo is a compulsory tip.
The opposite, at its root: the decree says establishments *may* set a charge, and requires prior agreement with the workers. No restaurant is obliged to charge it.
By law, all of it goes to the waiters.
The statute only says what the workers receive is not remuneration. It sets no split, requires no minimum share, demands no transparency and creates no penalty. That is a recognised legal gap, not a guarantee.
I can always refuse to pay it.
If it was disclosed in advance, visibly and accessibly, it forms part of the agreed price and is enforceable. If it was not disclosed, charging it is a breach and you can refuse and report it.
The 10% service is something different.
It has no independent legal existence. Either it is the recargo al consumo under another name — and then the 13% cap, the worker agreement and the disclosure duty all apply — or it is an add-on split from the final price, which article 5.3 prohibits.
The service charge carries 18% IGV (sales tax).
No. Decreto Ley 25988 itself says «este recargo no forma parte de la base imponible del Impuesto General a las Ventas» (this surcharge is not part of the IGV tax base), and Sunat confirmed it stays out even when it appears on the receipt (Oficio 257-2003). If IGV is charged on the service charge, you are being overcharged.
The service charge was created to replace tipping.
The decree says otherwise: it created the charge «en sustitución del tributo» (to replace the tax) it repealed — the hotel and restaurant consumption tax of Ley 24896, which funded staff wages and pensions. Tips were never part of that norm and remain voluntary.
Frequently asked questions
What is the legal cap on the recargo al consumo?
Up to 13% of the value of the services the establishment provides, under the Fifth Provision of Decreto Ley 25988. Anything charged above that percentage is no longer covered by this rule.
Where does the charge have to be disclosed before I order?
Article 5 of the Consumer Code requires restaurants, bars and hotels to display their price list on the outside of the premises. If the charge exists, it must be shown there or on the menu -- not appear for the first time on the bill.
Is it legal for a delivery app to pre-select a tip for me?
Not if it hides the option to remove it. Indecopi ruled (Resolución 1235-2024/SPC-INDECOPI) that pre-selecting a default tip and hiding how to remove it is a coercive commercial method; the corrective measure was a S/ 0.00 default, with the tip asked only after delivery.
What can I do if I was charged the service fee without being told beforehand?
You can file it in the venue's complaints book, describing it as a charge not disclosed in advance and citing article 5.3, and if you want Indecopi to sanction the business, file a denuncia through Reclama Virtual.
Is IGV charged on the service charge?
No. The Fifth Provision of Decreto Ley 25988 says the charge is not part of the IGV tax base, and Sunat (Oficio 257-2003) clarified that this holds even when the charge appears on the receipt. IGV is calculated on what you consumed, not on the service charge.
Does the service charge have to be itemized separately on the receipt?
This site found no rule requiring a separate line. The decree says the charge is paid «en la forma y modo que cada establecimiento fije» (in the manner each business sets), and Sunat contemplates it appearing on the receipt. What is mandatory is telling you about it before you order (article 5.3 of the Consumer Code).
Can the employer deduct breakages, card fees or admin costs from the service charge?
The norm does not regulate the split: it sets no percentages, does not require one hundred percent to be handed over, and does not say which deductions are allowed. Whatever was agreed with the workers governs. If the employer keeps something the agreement assigns to staff, that is a labor claim, not a consumer one.
If I paid the service charge, do I still have to tip?
There is no obligation to tip, with or without a service charge. If you want a specific person to receive an amount, giving it to them directly is how you decide where it goes; no norm governs where the service charge ends up beyond what was agreed.
What the fine is
| Conduct | Severity | Range | Authority |
|---|---|---|---|
| Charging amounts on top of the final price without disclosing them in a timely, accessible and visible way Ley 29571, arts. 5.3 and 110 The 450 UIT ceiling is the maximum for very serious breaches; the actual figure depends on how the breach is graded. | variable | up to 450 UIT up to S/ 2,475,000.00 up to $715,939 | Indecopi |
| Pre-selecting a default tip with no visible way to remove it (coercive commercial method) Ley 29571, arts. 2.2 and 56.1(b) Applied by Indecopi's consumer protection chamber in Resolución 1235-2024/SPC-INDECOPI. | variable | up to 450 UIT up to S/ 2,475,000.00 up to $715,939 | Indecopi |
Fines are set in UIT. When the UIT moves, every fine moves with it. UIT 2026 = S/ 5,500 (Decreto Supremo N.º 301-2025-EF). Reference conversion only. The debt is owed in soles.FX rate as of2026-10-12: US$ 1 = S/ 3.457.
The exact law
Decreto Ley N.º 25988Fifth Complementary, Transitory and Final Provisionread
Tax rationalisation law — creates and caps the recargo al consumo
«Los establecimientos de hospedaje o expendio de comidas y bebidas en acuerdo con sus trabajadores, podrán fijar un recargo al consumo no mayor al 13% del valor de los servicios que prestan, en sustitución del tributo que se deroga en el inciso f) del artículo 3o del presente Decreto Ley. El recargo al consumo, si fuera el caso, será abonado por los usuarios del servicio en la forma y modo que cada establecimiento fije. Su percepción por los trabajadores no tendrá carácter remunerativo y, en consecuencia, no estará afecto a las contribuciones de Seguridad Social ni FONAVI, ni afecto a indemnización, beneficios laborales o compensación alguna. Este recargo no forma parte de la base imponible del Impuesto General a las Ventas.»
Ley N.º 29571Article 5.3read
Consumer Code — duty to disclose the charge before consumption
Informe N.º 191-2019-SUNAT/7T0000Conclusionsguidance
Sunat — the charge is fifth-category income in the worker's hands
Oficio N.º 257-2003-2B0000 (Sunat, Intendencia Nacional Jurídica)Conclusiónguidance
Sunat — el recargo al consumo no forma parte de la base imponible del IGV, aunque figure en el comprobante
«resulta claro que el recargo al consumo, a que se refiere la citada Quinta Disposición Complementaria, que realicen los establecimientos de expendio de comidas y bebidas no forma parte de la base imponible del IGV, aún cuando esté consignado en el comprobante de pago respectivo, y que dicho recargo no deberá exceder del 13% del valor del servicio que se presta.»
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What this page already lets you do
- Name the rule that protects you
- Copy the exact article and send it
- Follow the steps, in order
- Know how far the fine goes