Model agreement ‘unrestricted substitution’ only valid for 53 more days

The Dutch Tax Administration will be withdrawing its approval of model agreements for services based on ‘unrestricted substitution’. This means that principals and contractors must take action before 1 January 2024. You can read below why, and what action is needed.

Current model agreement outdated

The Tax Administration has been making model agreements for services available to principals and contractors (such as self-employed workers, ZZP’ers in Dutch). The Tax Administration guarantees that there is no employment agreement if the parties work with and actually according to these model agreements, but an agreement for services instead. No payroll taxes (social contributions or wage tax) are then due.

One of the current model agreements is based on ‘unrestricted substitution’. If that is applicable, there is no employment agreement according to the Tax Administration. However, the Supreme Court ruled in the Deliveroo case that even if the worker can be substituted without restrictions, it can still be the case that he is working on the basis of an employment agreement. In other words, the existence of unrestricted substitution possibility does not (any longer) exclude the existence of an employment agreement. In that sense, the model agreements based on ‘unrestricted substitution’ are outdated. Therefore, the Tax Administration will withdraw its approval of those model agreements per 1 January 2024.

Action required before 1 January 2024

This means that principals and contractors must reassess and, if necessary, adjust their relationship / agreement before 1 January 2024. If they fail to do so, they may run the risk that the Tax Administration will rule that the agreement / relationship between them qualifies as an employment agreement. This could, for instance, result in payroll taxes having to be paid after all.

The requalification from agreement for services to employment agreement may also have consequences under employment law. These include the obligation to continue paying wages during illness and protection against dismissal.

Enforcement moratorium lifted no later than 1 January 2025

From 1 January 2025 at the latest, the Tax Administration will resume full enforcement, i.e. claim tax surcharges retroactively in case of (fictitious) employment. Until then, the current ‘enforcement moratorium’ continues to apply and the Tax Administration only enforces in case of ‘malicious intent’.

Legislative proposal on the clarification of the assessment of employment relationships and legal presumption

Finally, we would like to draw your attention once again to the Legislative proposal on the clarification of the assessment of employment relationships and legal presumption, of 6 October last. In short, this proposal aims to reduce the grey area between employees and contractors by (1) further defining the legal (authority) criterion ‘working in the service of an employer’ and (2) introducing a legal presumption of an employment agreement at an hourly rate below € 32.24.

We would also like to draw your attention to our overview article on the legislative proposal as posted on our website: https://bd-advocaten.nl/en/insights-en/bill-on-the-clarification-of-the-assessment-of-employment-relationships-and-legal-presumption/

The legislative proposal is currently up for (internet) consultation. We will keep an eye on developments and keep you informed.

Finally

Do you work with model agreements of the Tax Administration, or do you have other questions about working with or as a contractor? Do not hesitate to contact us, we are happy to assist