After the start of the company visits in 2018, the Tax and Customs Administration has now visited 104 companies from different industries and checked for compliance with the DBA Act. On March 5, 2019, State Secretary of Finance Menno Snel shared his findings with the House of Representatives through a letter.

This shows that 45 companies have "sufficient knowledge and experience with the current zzp legislation (is) and the law is being applied correctly. In total, 59 organizations appear to be 'acting incorrectly to a greater or lesser extent' according to the Tax Office. A follow-up investigation is underway at 12 of these, because the inspectors suspect them of knowingly hiring self-employed workers through a sham construction. The big question now is: in which of these companies can the tax authorities prove that they are malicious?

Guidelines Handbook Payroll Taxes are confusing
The reason that 6 in 10 companies' actions regarding external hiring are questioned, according to the Tax Office, has to do with the following:

* There are indications of the presence of a relationship of authority, while according to the agreement used there would be no relationship of authority.
* Zzp'ers perform the same work and in the same way as own employees.
* There are core activities, the work involves an essential part of the business, which may be an indication of employment.
* No substitution of the self-employed person is possible or desirable, and there also appears to be authority.
* The self-employed person has no ability to independently schedule his work.
* The duration of the employment relationship is so long that the freelancer's work seems to be embedded in the organization.
* There seems to be fictitious employment.
* Work is not done in accordance with the model agreement.

The study thus puts into action the fact that the directive on assessing the employer-employee relationship is maintained as "valid policy. Indeed, all the elements mentioned above are part of it. The guideline was incorporated into the Tax Office's 'Payroll Tax Handbook' in December 2018. Hannah Dias, manager tax advice at BDO: "Uncertainty about the qualification of an employment relationship, which has not been completely removed even with the guideline assessing the relationship of authority, causes companies to be reluctant to hire self-employed workers. With all its consequences for zzp'ers, clients and thus the Dutch economy."

Multi-interpretable indicators is now market problem
Snel's report on the company visits comes on top of the directive assessing the employer-employee relationship. In an earlier post on employer-employee relations, Dias already stressed that the various factors named in the directive must always be considered in relation to each other and therefore leave room for interpretation. "It is not always clear what weight and relevance is attributed to each element and how these elements should be assessed in their interrelationship. In addition, some elements of the guideline are so ambiguous that it is difficult for practitioners to understand them and apply them correctly in their own specific situation. The actual situation is important here. Is it sufficiently clear what the assignment entails and under what circumstances it will be performed? And what value is placed on these various facts and circumstances?"

Malicious: yes or no?
The Tax and Customs Administration uses the results of the company visits as input for the supervisory and enforcement strategy to be developed. The aforementioned 59 organizations that are (potentially) acting improperly will be involved in this. "For them, partly on the basis of the Directive, the Tax and Customs Administration can take the position that there is a malicious situation. Once one of them is actually labeled as malicious, it is not the end of the story. In fact, a business can object to any additional tax assessment imposed, first to the Tax Office and, at a subsequent stage, to the courts. Both bodies will reassess the situation based on all the relevant facts and circumstances presented."