Update on freelance file

The end of the enforcement moratorium on use of the self-employed is generating a lot of news at the moment.

The Tax and Customs Administration published an assessment and decision framework on 1 November 2024. This framework is intended to make it clearer to clients and contractors which elements the tax authorities consider necessary to decide whether or not a working relationship qualifies as employment. The assessment and decision framework is based on legal principles and published case law. This assessment and decision framework stems from the previously adopted motion to publish a clear enforcement assessment framework on the website of the Tax and Customs Administration so that clients can better predict how that tax authorities will look at a working relationship in an audit. The assessment and decision framework is essentially a summary of the present legislation and case law in which the Deliveroo judgment, in particular, was important. You can find the assessment and decision framework here (in Dutch).

Member of parliament, Mariska Rikkers (BBB: Farmer-Citizen Movement), who tabled the motion, is critical of the assessment and decision framework.  In her view, it provides insufficient clarity. The Minister of Social Affairs and Employment, Eddy van Hijum, takes the view that this framework complies with the motion.

When you look at the assessment framework you will see that it is (still) difficult to arrive at an unequivocal qualification of a working relationship, which means that there is no guarantee that in the event of an audit the Tax and Customs Administration would reach the same conclusion.  It therefore remains important as an organisation to make your own assessment and clearly record that it has been established that the role is one of self-employment and on the basis of what facts and circumstances that conclusion has been reached. Making use of the recently published assessment and decision framework would certainly be helpful in this context. With proper documentation there can at least be a discussion with the tax authorities on the substance of the matter. 

What we see in practice at the moment is that a debate has emerged on whether the self-employed (bogus or otherwise) would be better off working under a "BV structure" (private limited company under Dutch law), or some other variant of that, from 1 January 2025. We would like to emphasize that many variants have been suggested in practice but it is advisable to look very carefully at such structures. This is often a complex assessment in which more than two parties could be involved - also when hiring through an intermediary. After all, there is nothing more frustrating than thinking you have arranged your hiring properly, only to discover at the first inspection that the tax authorities do not accept the solution you have chosen.