The First Experiences With The New Freelancer Rules

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Since 1 May 2016, clients and freelancers have to deal with new rules. Expert Tjeerd Poot addresses the first experiences with these rules and outlines possible solutions.

The government wants to combat sham independence with new self-employed rules. Since 1 May 2016, they have made it easier for the Tax Authorities to check whether there is a self- employed person or employee. The VAR was abolished and the new model agreements published. Any sanctions now also affect the client.

Tax Administration button

The chance of an audit by the tax authorities has therefore increased since then, while the assessment framework hasn't changed. With this test, the Tax and Customs Administration first determines what applies between parties:

- What has been agreed?
- How is that written down?
- How is that meant?
- How are the agreements implemented?

The next question is: is there authority? If that's the case, the relationship will count as an employment contract. If that's not the case, then it concerns an assignment agreement. To determine whether there is a relationship of authority, all circumstances are considered.

Uncertainty rules

Because all the circumstances of the case are important, it's difficult to determine whether or not there is an employment contract. There is a guide from the Tax Authorities, but it doesn't provide certainty. In addition, there are also lists of indicators that point to the existence of an employment contract or a contract of engagement, but in practice there is often a mix of these. In short, uncertainty rules.

Because of this uncertainty and because nobody knows how hot the soup is, clients are very reluctant. As a result, the amount of work for self-employed people without employees seems to have fallen sharply in the first two months, various parties conclude. Whether that trend will continue will depend on the course of the tax authorities' checks. Unfortunately, nothing is known yet.

Rejected model agreements

In the meantime, 3500 model agreements have already been submitted to the Tax Authorities. According to Het Financieele Dagblad, 2400 of those model agreements have been processed. Of these, 800 were withdrawn after critical comments from the tax authorities, 650 were still being processed and 750 were rejected. Of the assessed agreements, 200 were approved. These have been or will be published on the website of the Tax Authorities.

Solutions

How can the risk of the new freelancers be eliminated as much as possible? The following solutions can be distinguished in practice:

- the self-employed person remains or becomes a true self-employed person (all indicators point to independence)
- the self-employed person becomes an employee (taking up employment with the client)
- the self-employed person becomes an 'enterprising employee' (taking up employment with the client with a high commission rate)
- the self-employed person becomes a temporary worker (entering employment with a temporary employment agency)
- the self-employed person becomes a payroll employee (starting with a payroll company)
- the self-employed person chooses a private limited company (by starting a company with several self-employed people without employees)

Finally, we will have to wait and see how the Tax Authorities will behave and when clients will let go of their restraint.

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