Wet DBA - english
As you will have seen due to its coverage by various media, Minister Koolmees sent his long-awaited letter regarding the replacement of Roadmap to the House of Representatives on 9 February this year. By way of this letter, we'd like to inform you of what that means for you as an independent professional.
In concrete terms, this means you may continue your work with our principals. After all, we have already carried out a WDBA check and you are working via a Bovib sample contract. Those not yet working via a Bovib sample contract will be informed about this in due course. We had been awaiting the outcome of Minister Koolmees' letter; now that enforcement has been postponed until at least 1 January 2020, we will also transfer other independent professionals to a Bovib sample contract.
Enforcement based on 3 criteria
Postponing the enforcement of the DBA Act to at least 1 January 2020 allows organisations to (continue to) hire independent professionals at no risk. There is talk of widening the concept of malicious behaviour; a malicious person is characterised as someone who deliberately causes or maintains obviously false self-employment. In such cases, the Dutch Tax and Customs Administration must prove the following three criteria:
- A (fictitious) employment relationship (authority, work, and wages);
- Clearly false self-employment within the principal-provider relationship;
- Additionally, intentionally false self-employment is demonstrable.
All three criteria must be proven by the Dutch Tax and Customs Administration!
Hiring through a Bovib broker safest option
Hiring organisations cannot be seen as malicious if using a broker with Bovib membership who, prior to concluding contractual matters with an independent professional, carries out the Tax Control Framework (TCF) - also called management checks - to determine the legitimacy of the independent contractor. The TCP involves the submission of an extract (no older than 3 months) from the Chamber of Commerce database, proof of VAT number, and a positive outcome of the Ondernemerscheck (entrepreneur check) on the Dutch Tax and Customs Administration website. With a Bovib sample contract approved by the Dutch Tax and Customs Administration, accompanied by an accurate assignment description (including a title, timeframe, and clearly outlined deliverables), the above points cannot (easily) be proven malicious by the Dutch Tax and Customs Administration. The hiring organisation runs 0% risk if they also deposit 25% into the broker's G-account (NEN 4400-1 certified and using the exculpation scheme)!
Difficult to prove employment
Demonstrating fictitious employment is already a stumbling block. Even if there is an element of "authority" (the principal determines what must be done as well as how it must be done), if the freelancer can be replaced as necessary (no obligation to personally perform the work) then fictitious employment cannot be proven. The same applies in reverse. If a self-employed professional cannot be replaced based on their specialism, they can personally decide how to perform their assignment.
The Dutch Tax and Customs Administration’s coaching role
It is also argued that the Dutch Tax and Customs Administration plays a coaching role, given their indication that if they are ultimately able to prove all three of the above criteria, they direct the principal to make changes so that one of the three criteria is no longer met. The likelihood of the Dutch Tax and Customs Administration imposing an additional tax or penalty is therefore zero, particularly in light of the remaining time until 1 January 2020.
Questions and clarifications
Should you have any questions or require clarification of any of the above, please contact Arno Pronk or call 0653953820. You can also find more information regarding the DBA Act on our website.