Words can’t hurt you, since they do not lead to a fine or criminal prosecution if there is no other evidence
Since its introduction, the Deregulations Labour Relations Assessment Law (Wet Deregulering Beoordeling Arbeidsrelaties or DBA law) has caused nothing but trouble. The Dutch Tax Authorities recently publicised a plan of approach for the enforcement of the law. The Enforcement Plan Labour Relations (Toezichtsplan Arbeidsrelaties), as it is called, was presented to show how the Tax Authorities will approach the enforcement of the DBA law. It states that around 100 assignment providers will be visited for an audit, classed as a friendly conversation with a business relation while just drinking some coffee. The assignment provider will probably then be interviewed about labour relations and the way things work out on a daily basis.
The approach of the Tax Authorities seems to have two major aims. The first one is to get more insight into the practical experiences, which can be used to improve the legislation in this area. Secondly, they aim to monitor the assignment providers and possibly enforce the DBA law by use of the criterion that an assignment provider maliciously violated the law. This may have some serious repercussions, because the Tax Authorities can impose a fine and also start a criminal prosecution.
If facts and circumstances lead to the presumption that there are a (fictional) employment and malice, the Tax Authorities will further investigate, which may lead to enforcement. According to the Enforcement Plan, the tax inspector will enforce the law if the following requirements are met:
- There is a (fictional) employment;
- There is obvious false self-employment;
- The false self-employment is maliciously existing.
In order to assess whether there is a (fictional) employment, two key elements will be investigated. The first one is the agreement between the assignment provider and the contractor. The second one is the way the agreement has been shaped into the actual working activities. A good example of the difficulty of determining the existence of an authority ratio is the Amsterdam Court’s judgment. Based on the text of the agreement and the actual working activities (1), the judge concluded that a deliverer from the food delivery company Deliveroo did not have a labour agreement and that there was no authority ratio.
Furthermore, the tax inspector must prove that there is obvious false self-employment. Up until now, there has not been an explanation of this formula. Hence, it has to be determined by the grammatical meaning. Since “obvious” entails that something is very clear, it should thus be really clear that the self-employment is not what it is made out to be.
Last but not least, the tax inspector must prove that the false practice was a malicious act by the assignment provider to benefit from lower tax and insurance costs. The Dutch Minister of Social Affairs and Employment Opportunities has given a definition of the word malicious in this context. “Malicious is the assignment provider or contractor who deliberately creates or lets continue a situation of obvious false self-employment, because he knows – or should have known – that there is actually a factual situation of employment (and with that improperly benefits financially and/or unfairly affects the playing field) (2).”
The definition creates some uncertainties, because the word “intentionally” is used in the Enforcement Plan, while “should have known” serves as a sufficient condition for prosecution according to the Minister. “Intention” does, however, require that someone actually knew about it. Therefore, it is difficult to know whether “should have known” is indeed sufficient to assume that something was intentional. The most logical explanation would be that the standard requirements for the term “intention” apply in such situations. Analogically seen, “intention” thus requires one of the party’s to have known about the illegality of the situation, but decided not to take action.
The reasons for the government interfering in these employment relations between assignment providers and contractors are simple, as such assignments generate less revenue from taxable income and the contractors are not insured to the same standards. In my opinion, the second reason should be the government’s main focus, because it is of more importance than the amount of money that our government receives by taxation.
The same matter applies to all the requirements for enforcing the DBA law. They all depend on the factual situation at that moment and time. With the new approach of the Tax Authorities, the government hopes to easily collect evidence to build a stronger case for imposing a fine or starting a criminal prosecution. They try to get the facts handed to them in a seemingly innocent manner, by visiting you for a simple conversation. When you find yourself in such a situation, it is thus of the utmost importance that you choose your answers wisely and do not speak impulsively. This is not only to your benefit in order to avoid involuntary cooperating in your own conviction. You might as well give information to the Tax Authorities that is incorrect which might increase the chance of being falsely convicted. The Tax Authorities and the tax inspector might not tell you, but rest assured everything you say can and will be used against you.
Yet, there is a glimmer of hope. According to the Dutch Supreme Court, evidence that depends on the will of a natural person and was acquired against the will of a suspect, may only be used by the Tax Authorities in order to impose taxes (3). Analogically, this evidence depending on the will of a natural person cannot be used to support the imposition of a fine or to support a criminal prosecution charge. In short: words can’t hurt you, since they do not lead to a fine or criminal prosecution if there is no other evidence.
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(1) Rb. Amsterdam 23 juli 2018, ECLI:NL:RBAMS:2018:5183, JAR 2018/189, m.nt. Wiewel & van Slooten;
(2) Kamerstukken II 2016/17, 34 036, nr. 44;
(3) HR 12 juli 2013, ECLI:NL:HR:2013:BZ3640, NJ 2014/35, r.o. 3.8.
TagsDBA law, Legislation, Self-employment
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