The debate around false self-employment and tax responsibility between clients and freelancers is heating up again. Recent reports show that more and more companies are shifting the financial risk of a tax reclaim onto the freelancer. But is that even allowed? And what are the implications? Legal and industry experts confirm that freelancers are increasingly faced with contract clauses making them liable for back taxes, fines, and even penalties—despite the fact that Dutch tax law generally places this responsibility on the client. These clauses are not only controversial but may also conflict with legal protections currently in place.
What is a tax reclaim?
A tax reclaim occurs when the Dutch Tax Authority determines that a freelancer (zzp’er) was effectively working in an employment relationship. In such cases, unpaid payroll taxes and social security contributions must still be paid—potentially resulting in tens of thousands of euros in retroactive charges. By law, the responsibility for this risk typically lies with the hiring party. However, many contracts now include clauses that shift this liability to the freelancer in the event of reclassification.
Growing risk for freelancers
A growing number of clients—especially large corporations and staffing intermediaries—are including such risk-transfer clauses in their agreements. Often, freelancers are unaware of the full implications of what they’re signing. Even though the Tax Authority maintains that the legal responsibility lies with the client, these contract clauses may still result in freelancers footing the bill through backdoor deductions or settlement agreements. Tighter enforcement by tax authorities has led some clients to adopt more defensive strategies, which include contractually pushing liability downward—even when this may not be legally enforceable.
What does this mean for you as a business?
If your business regularly works with freelancers—either directly or through a platform—it’s crucial to take a close look at how contracts are structured. Assigning full fiscal risk to the freelancer may be legally questionable and could damage your reputation. Freelancers should also be vigilant. Carefully review contracts for any such provisions, and when in doubt, seek legal advice before signing. A little scrutiny upfront can save a lot of financial stress later.
What Now?
Regulations around freelance work in the Netherlands are in flux. While the government is working on new legislation for clearer classification, caution is advised in the meantime.
- Review contracts for clauses that shift tax risk onto you.
- Clarify expectations regarding authority and execution of work.
- Don’t hesitate to consult a legal expert if anything seems unclear.
- Stay informed about legal developments and industry best practices.
