The Tax Office reports that they have received approval for the model agreement(and) with free substitution withdraws from 1 January 2024. If you are a ZZP-er or a client working with such an agreement, you should take a moment to reconsider the employment relationship (or have it reconsidered).
Deliveroo
The reason for the withdrawal is the Deliveroo ruling, in which the Supreme Court ruled that free substitution can still constitute employment. By not allowing the repeal to take effect until 1 January 2024, the Tax Authority is giving ZZP-ers and clients time to reassess their employment relationship. The repeal affects the general model agreement as well as branch agreements and individual agreements based on free substitution. Branch organisations and individual principals/contractors will receive a letter from the Tax Authority no later than 1 October 2023 when the approval for a model agreement will be withdrawn.
Employment
Of an employment relationship (employment contract; Section 7:610 of the Civil Code) exists if the legal relationship involves:
- the obligation to personal labour perform;
- for a fee (pay);
- in a employment relationship to the client.
The Supreme Court ruled in the Deliveroo delivery drivers case that the freedom of delivery drivers to work when they want and to substitute indicates that no there was an employment contract. But the court had nevertheless rightly held, based on other circumstances in the case, that well there is an employment contract. Thus, the practical importance of the substitution option in the Deliveroo case was minor. In addition, the Supreme Court refers to the degree of embedding of the work in the client's organisation and the amount of the consideration. However, as the legislator is working on this, the Supreme Court leaves this for what it is (the fall of the Rutte IV cabinet does, of course, raise the question of how energetically the legislator will take this up now).
Reassessment
The Inland Revenue recommends reassessing the employment relationship, including the Web module employment relationship assessment (on the Chamber of Commerce website) or the business check (on the Tax Administration's website) to use, but hasten to mention that those tools only give an indication and do not provide certainty. For that matter, the use of an approved model agreement does not offer complete certainty either because it is conditional on actually acting as written down in the (model) agreement.
Furthermore, the so-called enforcement moratorium still applies, under which the Tax Authorities only impose correction obligations and additional tax assessments in cases of malicious intent. But for some time now, the Tax Authorities have been making company visits and carrying out audits again, with a view to assessing whether employment relationships qualify as an employment relationship, as a result of which they can issue instructions, on the basis of which clients and contractors are expected to adjust their employment relationships.