We previously wrote about all the great uncertainty surrounding the introduction of the Wet DBA (Assessment of Employment Relationships (Deregulation) Act – the ‘Act’) on 1 May 2016. It has not been possible (in the short term) to achieve the purpose of the Act (i.e. to combat pseudo self-employment). The Act has given rise to a great deal of unrest among self-employed persons and their principals. The Tax Administration is furthermore struggling with a significant backlog in approving the model agreements. On the recommendation of the Boot Committee the die was finally cast on 18 November 2016: Mr Wiebes, the State Secretary for Finance, postponed the implementation of the Act until 1 January 2018. Time for an update.
Well-intentioned or ill-intentioned
In principle, the Tax Administration will not enforce the law during the extended implementation period, provided that the principal or contractor in question is deemed to be ‘well-intentioned’. A party is deemed to be well-intentioned if it is familiar with the Act and in any event attempts to operate in accordance with the model agreements. After January 2018 the Tax Administration will furthermore issue warnings before imposing additional tax assessments and fines on breach of the Act.
The situation is different for ‘ill-intentioned parties’. As from 1 May 2017, the original end date of the implementation period, the Tax Administration will indeed take enforcement measures against such parties. It may furthermore do so retroactively to 1 May 2016. A principal or contractor is ill intentioned if he intentionally creates sham arrangements and benefits or intends to benefit financially from such arrangements.
One thing is clear: it is in any event important to be classified as ‘well-intentioned’ by the Tax Administration. State Secretary Wiebes confirmed on 24 November 2016 that all the ill-intentioned parties are ‘old friends’ of the Tax Administration. He also stated that a very small number is involved, of definitely no more than ten. Those ill-intentioned parties primarily operate at the lower end of the market. That significantly reduces the risk for other parties of being classified as ill-intentioned, even though a wait-and-see approach is ill-advised.
The government’s task until 1 January 2018 (at the earliest)
The government itself obviously still has a great deal of work to do in the coming period. On the recommendation of the Boot Committee, the terms ’employer-employee relationship’ and ‘substitution allowed’ will be modernised. State Secretary Wiebes has furthermore clarified that the implementation period will not end until those terms have been redefined, even if that takes longer than until January 2018. The system of model agreements will furthermore be clarified.
So while the pressure is off the self-employment sector to some extent, it remains unclear how the Act will ultimately be applied. It is important to continue to use (approved) model agreements in practice. A wait-and-see approach is definitely not an option. And the VAR (Declaration of Independent Contractor Status) has been abolished and will not be reintroduced. We will of course be pleased to assist you in answering the question whether a model agreement is required and, if so, what type of agreement is best in keeping with your practice.