With the suspension, clients and contractors will not receive fines or additional assessments until 1 januari 2020 if afterwards an employment relationship is found in which they did not act in bad faith. You can read Minister Koolmees's letter to Parliament here (pdf) .
The DBA Act will only be enforced in the most serious cases of malicious actors. These are organizations that operate in a context of intent, fraud or swindle. This may involve cunning, falsification or collusion and situations that lead to serious distortion of competition, economic or social disruption or in which there is a risk of exploitation. Ultimately, from 1 juli 2018 more parties will be designated as malicious actors.
Enforcement on 3 criteria
That means that, as of this date, enforcement will characterize a malicious party as a party that intentionally creates or allows to continue a situation of clear apparent self-employment. If this is the case, the Tax Authority must in that case prove the following three criteria:
There is a (fictitious) employment relationship (authority, work and wages);
Clear apparent (sham) self-employment is present within the client-contractor relationship;
In addition, deliberate sham self-employment is demonstrable.
All three criteria must be proven by the Tax Authority.
Hiring via a Bovib-broker is the safest option
Hiring organizations cannot be seen as malicious if they hire through a broker who is a member of the Bovib en alvorens contractually arranging matters with a self-employed professional, it carries out its Tax Control Framework (TCF), also known as control measures, to determine whether the self-employed entrepreneur in question is indeed an entrepreneur. The TCF includes providing an extract from the Chamber of Commerce (KvK) (niet ouder dan 3 maanden), proof of VAT number and a positive result of the Entrepreneurs Check on the Belastingdienst website. Together with a Bovib model agreement approved by the Belastingdienst including a correct assignment description (assignment with a heading and a start and clearly deliverable results), the above points can hardly or not at all be demonstrated by the Belastingdienst as malicious. If the hiring organization also deposits 25% into the broker's G-account (NEN 4400-1 certified and making use of the disculpatieregeling)does the hiring organization run 0% risk!
Difficult to prove an employment relationship
Proving a fictitious employment relationship is already a tricky hurdle. Even if there were "control" (the client determines "what" must be done and also the "how"), still, if the ZP-er can be replaced in a given case (no obligation to perform the work personally) a fictitious employment relationship is not present! The reverse also applies. If a ZP-er cannot be replaced on the basis of his specialization, but does determine himself "how" he carries out his assignment. In the new agreements "duration" is also expected to no longer be relevant. After all, the Tax Authorities themselves have indicated that an assignment can well last 3 or 4 years, provided the assignment description has a clear "beginning and an end and describes the results to be delivered"!
Coaching role of the Tax and Customs Administration
In addition, it has been stated that the Tax Authorities have a coaching role. Literally, the Tax Authorities indicated that if they can ultimately prove all three of the above criteria they will ask the client in question to change the situation so that one of the 3 criteria will no longer be present. At a subsequent inspection, an additional request for adjustment may follow. The chance that the Tax Authorities will actually impose an additional assessment or fine is therefore virtually nil, especially in view of the remaining period until 1 januari 2020.
The Staffing Group continues to closely monitor the DBA Act.
In this dossier that is constantly evolving, you can continue to rely on us. Thus De Staffing Groep continues its policy regarding the WDBA unchanged. When deploying independent professionals, we will continue to monitor to prevent a fictitious employment relationship and false self-employment. With all independent professionals we enter into an approved Bovib model agreement and carry out a compliance check on their independence. If we ascertain the presence (or suspicion) of a fictitious employment relationship or false self-employment, we will inform you as the client immediately. And De Staffing Groep will continue to indemnify you as the client against all hiring risks.
