As of 1 May 2016: the DBA act and model agreements
The VAR has been replaced by the DBA Act. Pursuant to the DBA Act, the client and the contractor must jointly determine whether there is an assignment granted by one entrepreneur to another or whether there is an employment contract. This is determined on the basis of the three requirements for the existence of an employment contract: the obligation of the employee to personally perform work, the existence of a relationship of authority and the payment of wages.
The client and the contractor can use model agreements that have been approved by the tax authorities. These model agreements are published on the tax authorities’ website. The model agreement describes the relationship between the client and the contractor in such a way that there is no employment relationship. For example, the parties may use a model agreement ‘no employer’s authority’ or a model agreement ‘no obligation of personal labour’. There are also custom-made model agreements for specific sectors and/or professions.
The client and the contractor can also draw up an agreement themselves (if no (exactly) suitable model agreement is available, this is the route to be followed) and submit it in advance to the tax authorities for assessment.
It is not compulsory to use a model agreement made by the tax authorities or to have one’s own agreement approved in advance. However, if a (model) agreement is used that has been approved in advance, the client may assume that he or she does not have to pay wage taxes and social security contributions. A condition for this is, of course, that work is carried out in accordance with the provisions of the agreement.
The major difference between the VAR and the approved (model) agreements is that the latter do not guarantee that the tax authorities will not at a later moment and with retrospective effect still decide that there is an employment contract, with all its consequences. This may, for example, be the case when the parties in practice perform their agreement differently from what was agreed on paper. The approved (model) agreements therefore do not offer definitive certainty.
Enforcement only in the case of malicious intent or insufficient follow-up of instructions
The DBA Act does not provide clients and contractors with sufficient clarity when there is an employment contract. For this reason, the DBA Act will be replaced and enforcement by the tax authorities was temporarily suspended. Since 1 January 2020, there has been more enforcement, but only in the case of malicious parties.
This is the case if a situation of obvious bogus self-employment is deliberately allowed to arise or continued to exist because one knows, or could have known, that there is in fact an employment relationship. The tax authorities will then have to prove that there is a (fictitious) employment relationship, obvious bogus self-employment and intentional bogus self-employment.
If it turns out that there is an employment relationship, but not malicious intent, the tax authorities will not enforce, but they can give instructions to shape the working relationship in such a way that it involves working outside the employment relationship or to process the working relationship as employment in the tax return. Only if these instructions are insufficiently followed in the period set by the tax authorities, can the tax authorities enforce them.
New plans for ZZP’ers: the client statement
The government has announced its plans in the coalition agreement for new legislation for zzp’ers. The intention of the new legislation is that there will be more clarity for clients and contractors. A web module will be created for clients, which will provide clarity in advance as to whether or not there is an employment relationship. If it follows from the answers to the questions in the web module that it is possible to work outside an employment relationship, the client will receive a client statement. With this client statement, the client receives certainty that a certain assignment can be carried out outside of an employment relationship and there is certainty that no wage tax has to be withheld and paid, and no contributions have to be paid for employee insurances and the income-related Healthcare Insurance Act (Zvw). This applies if the questions have been answered truthfully and action is taken in accordance with these answers. Completing the web module is not an obligation.
Compulsory insurance for ZZP’ers?
On June 5, 2019, an agreement in principle was reached to renew the pension system. This agreement includes an obligation for self-employed persons to insure themselves against incapacity for work. The Labour Foundation has submitted a proposal for occupational disability insurance to the Minister of Social Security and Employment. The government will inform us further whether this proposal will be adopted.