The enforcement moratorium on the DBA Act will end on January 1, 2025, which has raised concerns among many people. A lot of businesses are wondering if the Dutch Tax and Customs Administration (Belastingdienst) will start mass enforcement. This uncertainty is causing some uncertainty among clients when working with self-employed professionals. In this article, we'll explain why this hesitation is unnecessary and outline the key factors you should consider to properly qualify employment relationships within your organisation.
The Tax authorities focuses on problem cases, not every self-employed relationship
The Tax authorities has indicated that with the lifting of the enforcement moratorium, the 'indication' tool will be abolished. However, there has also been a call from politics for a 'soft landing'. Since October 2024, several motions have been passed in the House of Representatives supporting this. It has been agreed that, in 2025, the Tax authorities will initially enforce only on a risk-based approach, focusing on problem cases such as forced self-employment, underpayment, clear false self-employment, or labour migration schemes. These motions stress the need for stability for both clients and freelancers.
What does the risk-based approach entail?
The risk-based approach from the Tax Administration means that there will not be immediate, widespread enforcement of every freelance contract, but rather a focus on genuine violations. This gives businesses and freelancers the space to continue their collaborations without immediate fear of retrospective assessments. It has been indicated that this risk-based approach will be maintained for at least one year.
Below, we outline why none of the aforementioned concerns apply when working with freelancers via Temper:
- False self-employment: Freelancers working via Temper do so entirely voluntarily. They consciously choose the flexibility that self-employment offers them, allowing them to adapt their work to their life, rather than the other way around. Additionally, there are no restrictions on becoming directly employed by a client. These points confirm that there is no issue of forced self-employment with Temper.
- Underpayment: Freelancers working via Temper always earn well above the statutory minimum wage and the minimums set out in sector-specific collective agreements (CAOs). On average, freelancers using Temper earn €19.85 per hour, which is significantly higher than the minimum requirements. Therefore, underpayment is not an issue.
- Bogus self-employment: Freelancers working through Temper display more characteristics of true self-employment than employment. They determine where they work themselves, they only take on short-term assignments, they have the freedom to arrange substitutes, can negotiate their rates, work for multiple clients, and bear commercial risk. These factors clearly indicate that there is no disguised employment relationship. You can read more about the criteria used by the Tax Administration in our article: How to determine the right employment relationship as an organisation.
- Labour migration schemes: Temper does not involve labour migrants or individuals who require a work permit (TWV). This means that when working with freelancers via Temper, there is no risk of violations related to labour migration schemes.
Layered control model
As an additional step to clarify enforcement, the Tax Administration has announced it will work according to the 'layered control' model (‘schillenmodel’). This means that if an organisation can demonstrate during an initial inspection that it has taken measures to prevent bogus self-employment, the Tax Administration will not immediately conduct further investigations. The focus will primarily be on organisations that have not properly managed their use of freelancers. Therefore, it’s advised to ensure that this first layer is properly managed.
How do you ensure that the first layer is properly managed?
The first layer can be organised in two steps:
- Document how the hiring of freelancers is structured within the organisation and specify the types of working relationships. We can help you with this through our step-by-step guide.
- Assess these working relationships based on case law (such as the Deliveroo ruling) and the DBA Act. We have created a handy scorecard that you can use as a guide.
This shift to risk-based enforcement allows businesses and freelancers the opportunity to properly define their relationships. By following the steps above, you can continue working with freelancers throughout 2025.
Do you need help ensuring that your relationships comply with the rules? Feel free to contact us, we’d be happy to assist you.
