The approval granted by the Dutch Tax Authorities and the model agreements “unrestricted substitution”, which are derived from it, will be withdrawn as of January 1, 2024. These model agreements allowed clients to contract with self-employed individuals without withholding payroll taxes. The reason for this withdrawal is the Deliveroo ruling (Supreme Court, March 24, 2023). The Dutch Tax Authorities announced this withdrawal on August 14th.
Consequences for model agreements based on unrestricted substitution
The model agreements based on unrestricted substitution state that the contractor may be freely substituted, thereby avoiding the establishment of an employment relationship. However, the Deliveroo ruling of the Supreme Court illustrates that an employment relationship may still exist if the possibility of substitution is rarely exercised in practice. Consequently, the Dutch Tax Authorities are withdrawing their approval of the general model agreement “unrestricted substitution” as well as the branch and individual agreements derived from it. The withdrawal takes effect January 1, 2024, to provide clients and contractors the opportunity to reassess their labor relationships.
Trade associations and individual clients that possess their own approved model agreement based on unrestricted substitution (about 400 interested parties) will receive a letter from the Dutch Tax Authorities regarding the withdrawal by October 1, 2023. Those who have not submitted a model agreement will therefore not receive a letter.
Intensification of control by Dutch Tax Authorities?
The Dutch Tax Authorities have also announced that they will continue conducting company visits and tax audits, which include evaluating labor relationships. If the Tax Authorities determine the existence of an employment relationship, they will issue instructions to the client to adjust the employment relationship. For the time being, no correction obligations or additional tax assessments will be imposed, except in cases of malicious intent.
It is noteworthy that the Dutch Tax Authorities did not want to wait with the withdrawal until January 1, 2025—the expiration date of the enforcement suspension. This decision is best understood in the context of the plans outlined in the “Progress Letter on Working with and as a Self-Employed Person(s) dated December 2016, 2022”. This letter emphasizes the increased role of enforcement and anticipates the eventual end of the enforcement suspension. The combination of the recent ruling and complaints about the model agreement ‘unrestricted substitution’ causing competitive imbalances has placed considerable pressure on the Dutch Tax Authorities, leaving little room for delay in resuming enforcement.
Clients and contractors using a (model) agreement based on ‘unrestricted substitution’ will have to utilize the coming months for a reassessment of their labor relations to decide if withholding payroll taxes can be omitted.