NL: Attention: the Tax and Customs Administration withdraws approval of self-employed model agreements based on 'free replacement' as of 1 January 2024!

 

This summer, the Tax and Customs Administration announced that it would withdraw approval for model agreements based on 'free replacement' following the Deliveroo ruling of the Supreme Court as of 1 January 2024.

The model agreements of the Tax and Customs Administration

The model agreements of the Tax and Customs Administration are intended for clients and contractors (self-employed persons). When a model contract is used, there is in principle no employment contract. When working in practice in the manner described in the model agreement, the client has the certainty that the relationship with the contractor is not regarded by the tax authorities as employment and that, for example, no wage tax is due on the remuneration paid to the contractor.

There are different types of model agreements. In addition to specific model agreements for branches and professional groups, the best-known general model agreements are the model agreement 'no employer authority' and the model agreement 'no obligation to personal work' (also called: 'free replacement').

Deliveroo judgment 24 March 2023

In March we wrote a blog in response to the Supreme Court's ruling on Deliveroo deliverers. In that judgment, the Supreme Court ruled that the agreements between Deliveroo and the meal deliverers, who worked as self-employed persons on the basis of an assignment agreement, are employment contracts. According to the Supreme Court, the freedom of the delivery drivers to be replaced in the agreements does not preclude the existence of an employment contract. This means that even in the case of free replacement, there may be an employment contract.

That is why the Tax and Customs Administration has decided to withdraw the approval of the model agreement based on 'free replacement' as of 1 January 2024. This means that from 1 January 2024, the model agreements based on free replacement no longer offer certainty as to whether employment is involved or not according to the Tax and Customs Administration.

What's next?

The Tax and Customs Administration has indicated that if, for example as a result of a company visit, it concludes that there is an employment relationship, instructions will be given. No correction obligations or additional assessments will be imposed, except in the case of malicious involvement.

No later than 1 October 2023, the Tax and Customs Administration will inform sector organisations and individual clients/contractors whose model agreement has been approved by the Tax and Customs Administration about the withdrawal. If you have not submitted the model agreement to the tax authorities, you will not receive a letter.

We advise clients and contractors who use the model agreement 'free replacement' to examine the agreement and the employment relationship to which the agreement relates before 1 January 2024. Of course we are happy to help you with that!

 

For further information on this article, please contact a member of the Employment Law department at Milestone Advocaten:

Brigit van de Ven-Meier, vandeven@milestoneadvocaten.com , +31 6 23 93 65 79

Caroline van der Zwet, vanderzwet@milestoneadvocaten.com , +31 6 29 59 71 64

Frouke Vlaskamp, ​​vlaskamp@milestoneadvocaten.com, +31 6 50 60 23 15

Caroline Huizinga, huizinga@milestoneadvocaten.com , +31 6 30 62 82 82

 

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