Gelderland District Court has confirmed that DGAs with unequal interests in a BV are compulsorily insured for employee insurance.
Insurance obligation
The adjudicated case involves a BV in which over 40 medics are the shareholders. The shareholders all work as radiologists for the BV. They perform this work in a hospital.
For employee insurance are insured:
- natural persons;
- who work in employment.
It is not in dispute that the medics work in employment with the BV. This means that, in principle, they are insured, except when they qualify as director-major shareholder (DGA). To do so, they must meet the Director-major shareholder designation scheme.
The BV is invoking the section of this Scheme which provides that being a DGA (not compulsorily insured):
- the statutory directors;
- who together own all the shares of the BV;
- and if shareholders represent an (almost) equal share of the BV's capital.
All the radiologists had been appointed statutory directors of the BV and together they held all the shares of the BV. But because some shareholders held an interest of 2.6%, while others held smaller interests (the smallest interest held was 1.43%), the third criterion is not met, the court ruled. Virtually equal shareholding occurs only when the difference comprises the smallest possible number of shares.
Insured
As a result, all radiologists are considered employees and the BV is liable to pay employee insurance contributions on the salaries paid to them.
The BV also argued that the Tax Authorities should have granted it a reasonable transition period after the introduction of the new DGA designation regulation as of 1 January 2016. The Court overruled this argument, considering that the new regulation was published in the Government Gazette almost six months before its entry into force, giving the BV ample time to prepare for the new regulation.