At least on paper. It became clear at the end of 2018 that the DBA is here to stay, at least until the year 2021.
We have previously written about the continuous postponement of the enforcement of the legislation by the tax authorities, with the exception being formed by cases of intentional malicious intent on behalf of companies.
The terms “malicious intent” is used to describe cases where companies engage services as self-employed even though the contractors do not fulfill the criteria to be classified as such.
One of these criteria is the absence of a relationship of authority between the client company and the contractor (gezagsverhouding)
The minister of social affairs and employment, Wouter Koolmees, has in the meantime provided further clarification of the term “relationship of authority”.
This could potentially aid companies in determining whether contractors can be classified as self-employed.
However the clarification itself indicates that the tax office is quick to classify a relationship as that of employment and even deepens the term “relationship of authority”.
The relationship of authority is explained as guidance and supervision, permanent staff employed in similar positions, work location and working hours, and the way in which the contractor presents himself to parties outside the company.
Any single one of the above can point the tax office in the direction of employee classification, especially since further specification of interpretation of these points remains open and unclear in the absence of enforcement of the legislation. The tax office would need to provide supporting explanation for each case of classifying self-employed contractors as employees.
Until the time when the DBA is enforced the absence of precedence cases will make it difficult for companies to make the classification themselves and remain risk-free.
The safest solution for all client companies remains the employment solution, however unpopular it may be with the contractors.