DBA replaces VAR Laws and regulations

26 jul, 2016

With the introduction of the Assessment of Employment Relationships (Deregulation) Act (Wet Deregulering Beoordeling Arbeidsrelaties, DBA), the Declaration of Independent Contractor Status (Verklaring Arbeidsrelatie, VAR) has disappeared as of May 1, 2016. Clients and contractors (often independent professionals) can use a model agreement in its place. This gives them certainty about the mutual working relationship in advance. Clients know that they don’t need to deduct or pay payroll taxes. When using the model agreements, they have certainty about the payroll taxes for a period of 5 years. As for the VAR in the past, the model agreements are not an obligation.

Model agreements
The Tax Authorities made a number of model agreements available. The general model agreements are suitable for all types of contracts, regardless of the industry or profession. Industries, clients, intermediaries or self-employed professionals can also submit model agreements to the Tax Authorities for review. This is not mandatory, however it offers additional certainty that the model agreement is correct. The involved parties must agree in advance on which model agreement they use. A confirmation by e-mail is sufficient.

Transition period
There is a transitional period until May 1, 2017, and the Tax Authority will limit itself to providing information and assisting with the implementation of this new approach. However, clients and contractors must actively prevent false self-employment. This can be done through demonstrable negotiations on the use of a model agreement and its actual implementation. This ensures that the client and the contractor meet the so-called best efforts requirement.

The Tax Authorities will take action in the following cases:

  • If there was a (fictional) employment before May 1, 2016, while there was an indemnification based on a VAR
  • If a due diligence demonstrated an actual employment before February 1, 2016
  • In case of intent or gross negligence

Why this change?
The Tax Authorities are able to monitor the situation better thanks to the introduction of the DBA. The responsibility for counteracting false self-employment is divided between clients and contractors. In the past only the independent professional was liable with the VAR. Now, the client is also liable for tax and contribution requirements in the event of actual employment. Based on the new legislation, the independent professional will in this case also be entitled to social securities. The client can recover an additional assessment for the payroll tax/social security premiums from the contractor (employee). The employees’ insurance and the income-dependent contribution Health Insurance Act (Dutch Zvw) may not be recovered.

Another advantage for independent professionals is that they no longer need to submit a new request every year. A new declaration is no longer needed for every change in work or conditions when using a model agreement.

Roadmap

  1. The client discusses with the independent professional whether a model agreement is necessary. When it is not certain if an independent professional is actually employed, a model agreement can be used.
  2. The website of the Tax Authorities offers model agreements which matches the approach of the client and the independent professional. Of course, they can also establish an agreement without the intervention of the Tax Authorities. We recommend having it assessed by a company lawyer based on the benchmarks observed by the Tax Authorities.
  3. The administration of the concerning parties must include the specific agreement used.
  4. Finally, it is important to actually work as described in the model agreement. As long these conditions are met, there is no case of actual employed, and the employer does not need to deduct payroll taxes.

Jaap Varkevisser

Payroll Consultant

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