Below you'll find additional information about what has changed and how you can arrange for your own model agreement.

In Dutch, various terms are used to refer to an independent contractor, e.g. opdrachtnemer (contractor), freelancer or zzp'er (self-employed worker without employees). To simplify terminology, the information provided on these pages uses the term 'independent contractor' or just 'contractor'.

Frequently asked questions VAR/DBA and Model agreements

We've also provided the answers to some of the most frequently asked questions about the old VAR and the new DBA (Assessment of Employment Relationships (Deregulation) Act):

  • VAR + DBA for independent contractors
  • VAR + DBA when hiring independent contractors

Frequently asked questions VAR-DBA for independent contractors [zzp'ers]

Frequently asked questions VAR-DBA for independent contractors [zzp'ers]

1 When is an agreement not required?

As was the case with the VAR, it's not actually mandatory to use a model agreement. You will be classified as being in employment if certain conditions relating to the following three aspects apply:

  • individual work
  • pay
  • authority

If any one of these conditions does not apply or exist, then your working relationship will not be classified as one of employment. If it's quite clear that you're not employed by your client, then a model agreement is not required. A model agreement does however provide you and your client with clarity and certainty about the exact nature of your working relationship. Download a generic model agreement or a model agreement for your sector or industry.

2    What should I include in a model agreement?

The most relevant provisions have been highlighted in yellow in the generic model agreement. Do not alter these provisions. You may amend or supplement the provisions that have not been highlighted to reflect your personal situation, as long as these do not contradict or conflict with the provisions highlighted in yellow.

3    Can I submit my own model agreement to the Belastingdienst?

Yes, you can, but this is generally unnecessary. In many cases, it's quite clear that you're not employed by your client. If you're in doubt or you need additional clarification or certainty, then you're advised to use a generic model agreement or a model agreement drafted specifically for your sector, industry or profession. You can start using these agreements right away.

If for whatever reason you still want to draft your own agreement and have this assessed by the Belastingdienst, then base this on the generic model agreement or a model agreement for your sector, industry or profession. By doing so, you'll be sure to have included the correct provisions. Find out more about submitting your own agreement.

4    Is it advisable to set up a single-member limited liability company [Dutch: eenmans-bv]?

Even if you set up an eenmans-bv, there's still a chance the Belastingdienst will classify you as being in employment. If there's an obligation to perform work individually, then an agreement can only be made with a natural person, i.e. not with your eenmans-bv.

5    Is my client entitled to pass on income tax and national insurance contribution payments to me in the event our working relationship is classified as employment?

Yes, your client is entitled to do this. This can also be included in the agreement. Make sure you include a provision specifying that your client inform you immediately about any additional tax assessments. You are in turn entitled to lodge an objection within a given timeframe. 

Be aware that your client may not pass on any fines or additional tax assessments for employee insurance premiums or health insurance contributions that they may receive. Any provisions in an agreement to the contrary are therefore invalid.

6    What is a fictitious employer-employee relationship [Dutch: fictieve dienstbetrekking] and why do I need to avoid one?

In a fictitious employer-employee relationship, you're a contractor working for your client, but the way in which you work together is in the eyes of the law classified as employment. Characteristics include aspects relating to an obligation to perform work individually, pay and authority. In such an event, your client will then be obliged to withhold or pay income tax, national insurance contributions, employee insurance premiums and health insurance contributions. 

Your client is entitled to pass on income tax and national insurance contribution payments. You can avoid this situation by using and adhering to a model agreement.

Frequently asked VAR-DBA questions when hiring independent contractors

Frequently asked VAR-DBA questions when hiring independent contractors

1    When is an agreement not required?

As was the case with the VAR, it's not actually mandatory to use a model agreement. You'll be classified as employing a contractor if certain conditions relating to the following three aspects apply:

  • individual work
  • pay
  • authority

If any one of these conditions does not apply or exist, then your working relationship will not be classified as employment. If it's quite clear that you're not employing your contractor, then a model agreement is not required. A model agreement does however provide you and your independent contractor with clarity and certainty about the exact nature of your working relationship. Ask your independent contractor for his or her model agreement or download a generic model agreement or a model agreement for your sector, industry or profession.

2 What should be included in a model agreement?

The most relevant provisions have been highlighted in yellow in the generic model agreement. Do not alter these provisions. You may amend or supplement the provisions that have not been highlighted to reflect your personal situation, as long as these do not contradict or conflict with the provisions highlighted in yellow.

3. Can I submit my own model agreement to the Belastingdienst?

Yes, you can, but this is generally unnecessary. In many cases, it's quite clear that you're not employing your contractor. If you're in doubt or you need additional clarification or certainty, then you're advised to use a generic model agreement or a model agreement drafted specifically for your sector, industry or profession. You can start using these agreements right away.

If for whatever reason you still want to draft your own agreement and have this assessed by the Belastingdienst, then base this on the generic model agreement or a model agreement for your sector, industry or profession. By doing so, you'll be sure to have included the correct provisions.

Find out more about submitting your own agreement.

4. What are the risks if I don't use a Belastingdienst model agreement?

A model agreement is not mandatory. You can decide for yourself whether or not to withhold or pay income tax and national insurance contributions. For example, this is something you can arrange using the Belastingdienst's example provisions.

While being audited, the Belastingdienst will examine your working relationship with your contractor and determine whether it constitutes employment or not. If it does, you'll have to pay income tax and national insurance contributions, and possibly even a fine, whether actually employed or not.

5. Am I entitled to pass on income tax and national insurance contribution payments to my contractor in the event our working relationship is classified as employment?

Yes, you're entitled to do this. You can even include provisions for this in your model agreement.

Be aware that you may not pass on any fines or additional tax assessments for employee insurance premiums or health insurance contributions to your contractor, even if you've included such a provision in your model agreement.

6. What is a fictitious employer-employee relationship [Dutch: fictieve dienstbetrekking] and why do I need to avoid one?

In a fictitious employer-employee relationship, you have hired a contractor, but the way in which you work together is in the eyes of the law classified as employment. Characteristics include aspects relating to an obligation to perform work individually, pay and authority.

In such an event, you'll then be obliged to withhold and pay income tax, national insurance contributions, employee insurance premiums and health insurance contributions. You can avoid this situation by using and adhering to a model agreement.

7. What if I hire a contractor through a temporary employment or secondment agency?

It's always an option to hire a contractor through a temping or secondment agency. If you do so based on the intermediary model, then the agency remains the contractor's formal client. In this situation, no direct agreement exists between you and your contractor.

The risk that the working relationship is classified as an employer-employee relationship is then the agency's. It is however possible the agency will want to make agreements about passing on any additional tax assessments.

Another option is to use a brokerage model. In this situation, the agency puts you in contact with a suitable contractor, and you hire him or her directly. You will then have to define the working relationship using a model agreement. Your agency can help you draft this.

Source:

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