VBAR law and enforcement of bogus self-employment

In the run-up to the lifting of the enforcement moratorium on 1 January 2025, the Tax and Customs Administration is busy making company visits and, where necessary, carrying out book examinations at companies that work a lot with self-employed people, with the healthcare sector in particular being suspected by default. This is part of the preparation plan and should already adjust working people where necessary. In principle, the Tax Authority says it wants to join the government’s plans to tackle false self-employment. But those plans have been shelved for the time being.

VBAR Act

In October 2023, the Minister of Social Affairs and Employment submitted a draft bill for internet consultation. This law is called ‘Clarification of assessment of labour relations and legal presumption‘. VBAR Act abbreviated. The VBAR can be seen as an extension of the 2016 DBA Act. There has been a lot of criticism of the bill. In response, the minister informed that the publication of the VBAR in 2025 is not feasible. Perhaps in 2026 but that is not yet clear. However, the Inland Revenue does plan to start enforcing by 1 January 2025. Even though there are likely to be amendments to the bill, its contents are already being taken into account by the Tax Administration for enforcement. Therefore, I will discuss its contents.

Content of the law

As the law says, the government wishes to clarify when a worker is employed by an employer and when it is self-employment. This is envisaged through the introduction of a legal presumption for the existence of an employment contract coupled with an hourly rate limit. The law also aims to clarify the concept of “employed by” based on the case law that has emerged on the subject in recent years.

The holistic test

The following definition of employment contract currently follows from the law: ‘The employment contract is the contract by which one party, the employee, undertakes to perform work in the service of the other party, the employer, for pay for a certain period of time.’ (Section 7:610 of the Civil Code). On this basis, the court applies the so-called ‘holistic test’ in which all the circumstances of the case are considered.

Authority criterion

Especially the criterion -in the service of-, also known as the authority criterion, has been fleshed out by recent case law. The bill makes an attempt to clarify authority by weighing a combination of the following factors:

1. work-related direction by the employer;
2. organisational embedding of labour and employee;
3. work at own account and risk.

If A + B together with C are balanced then there is an additional test called C+:
C+. the way the worker behaves in economic life.

The explanatory memorandum elaborates on this in the following points.

Work content management

Two indications are given for work-related direction:

1. The worker has the power to give directions and instructions on how the worker should perform the work and the worker must follow them.
2. The worker has the ability to monitor the work done by the worker and is authorised to intervene on that basis.

Organisational embedding

Regarding organisational embedding, the following indicators have been established:

1. The work is performed within the organisational framework of the worker’s organisation.
2. The work is part of the core activity of the organisation.
3. Work has a structural character within the organisation.
4. Work is performed side-by-side with employees performing similar work.

Own account and risk

Own account and risk is weighed on the basis of the following points:

1. The financial risks and results of the work lie with the worker.
2. When performing the work, the worker is responsible for tools, aids and materials.
3. The worker possesses specific training, work experience, knowledge or skills, which are not structurally present in the organisation of the worker.
4. The worker acts independently while working.
5. There is a short duration of the assignment and/or a limited number of hours per week.

Entrepreneurship

The way in which the worker usually behaves in the economy depends, for example, on the number of clients, how much time the worker spends on acquisition and building his reputation. Also called external entrepreneurship.

Legal presumption

Furthermore, a rate limit is imposed. If someone earns equal or less than €33 per hour, an employment contract is presumed. The amount is based on a multiplier of the minimum wage. In contrast, there is no legal presumption of self-employment if the worker works above this hourly rate. The legal presumption can be invoked by the worker. There is then no automatic employment contract but the worker can invoke it and the worker may rebut it. This presumption does not work through to the UWV, the Tax Office or the Labour Inspectorate.

Criticism

Much criticism has been levelled at the bill. It is still too complicated. Healthcare institutions fear that 55% of their staff will leave because it will become practically impossible to work with self-employed people for long periods of time. Legal experts are wary of abandoning the holistic test and believe that the law change is mainly a convenient tool for enforcers but not so much for the workers themselves. Tax lawyers feel that the way the bill is drafted focuses too much on when someone is an employee when, in their view, the start lies in defining entrepreneurship.

Adjustments

In response to the many comments, the review framework has been improved, the minister says. The draft bill is not yet public but the government is already giving away that the term “core activities” will be dropped as an indication. Whether this really addresses the criticism is uncertain.

Self-employment test

Tax lawyer Hans Baaij is therefore developing a “self-employment test”. It is a model that can determine, based on objective factors, whether someone can call himself an entrepreneur. It then follows from this whether wage tax should be withheld. It is a kind of traffic light system with three colours, red, green and orange: the doubt category where additional testing will be required. You could see it as a less fraud-sensitive replacement for the VAR declaration.

Own preparation

As an employer, you can already prepare for enforcement by the Tax Authorities. By making an overview of the current zzp file. Map this out and think about how parties want to cooperate. Assess your contracts. Do they match how work is done in practice? Don’t just look at what has been agreed on paper but firmly test performance against the new benchmarks as mentioned in this article.

For enthusiasts, here is a link to the Explanatory Memorandum to the VBAR Act, which explains the concepts with examples. Another useful tool is the Handbook of Payroll Taxes 2024, which you can download here. This allows you to identify the risks and assess whether you may need to work together in a different way.

Questions?

Do you have any questions on this topic? If so, feel free to contact one of our employment law specialists. Then contact one of our lawyers by email, phone or fill in the contact form for a no-obligation initial consultation. We will be happy to think along with you.