The DGA and the Wet DBA: Knowledge Document for the Organisation

Introduction

This document builds on the knowledge document about the Wet DBA and false self-employment. Where that document describes the general framework, this document goes deeper into one specific scenario that often causes confusion in practice: the engagement of a DGA (majority shareholder-director) with their own limited company (BV).

After going through this document you will be able to:

• explain why a company's own BV does not automatically protect a DGA against false self-employment;
• describe the difference between tax law and civil law in this context;
• explain why employer authority and the general meeting of shareholders (AVA) play a crucial role here;
• recognise difficult practical situations (such as a STAK structure or multiple BV structures);
• apply the practical rules of thumb for a "clean" structure.

1. What is a DGA, and why do BV owners often think they are safe?

A DGA (majority shareholder-director) is, according to the Tax Authority's definition, someone who owns at least 5% of the shares in a company and is simultaneously a director of that company. In a holding structure, this criterion applies to the holding company.

BV owners often assume that, precisely because they have a BV, they fall outside the scope of the Wet DBA and the risk of false self-employment. The reasoning usually goes: "But I'm employed by my own BV, aren't I? I do pay payroll tax, don't I? I don't use the entrepreneur's tax deduction, do I?"

This is a misconception. The Tax Authority is very clear about this: the client of a DGA with a BV runs an equal risk of being classified as an employer upon inspection, if the actual working situation qualifies as an employment relationship. A current example illustrates this well: a DGA who "invoices via their own BV," but who in practice works under instructions at a single client and is part of that client's team — despite the BV structure, the Tax Authority can still conclude that an employment relationship exists, with consequences for the client.

The core of the problem: a BV structure is not an end in itself. What matters is whether the way of working at the client resembles an employment relationship — and that does not change based on the legal form the DGA chooses to be paid through.

2. The deemed employment relationship: tax law versus civil law

To understand why a BV offers no guarantee, it is important to grasp one principle: tax law and civil law are not the same thing, and civil law takes precedence.

The relationship between a DGA and their own, "ordinary" BV is, for tax purposes, often what is known as a deemed employment relationship (fictief dienstverband). This means:

• The Tax Authority taxes the DGA as an employee (payroll tax is withheld), and therefore not as an entrepreneur.
• But the DGA is not thereby an employee under civil law. The DGA does not pay employee social security contributions and is therefore not insured within the social security system.

This tax-based "deemed" employment relationship is therefore something different from a genuine, civil-law employment contract. And that distinction is exactly what matters: in Dutch legislation, civil law ranks above tax law. If an employment relationship under civil law is established at the client — with the three classic elements of personal labour, pay, and authority — that takes precedence over the tax-law construction within the DGA's own BV. In that case, the client is still classified as the employer, regardless of how the DGA has organised things for tax purposes.

What does this mean for the DGA's own risk? Because a DGA does not use the entrepreneur's tax deduction and other deductions available to a sole trader (such as a self-employed professional with a sole proprietorship), those deductions also cannot be reclaimed if false self-employment is established. In that sense, the tax risks for the DGA themselves are smaller than for a self-employed professional with a sole proprietorship. But the client runs an equal risk of being classified as the employer — and because the Wet DBA is primarily about the client's risks, the effects of that law ultimately also affect the DGA: clients become more hesitant to engage DGAs if there is no watertight model agreement in place, and therefore a risk of false self-employment exists.

3. Why a BV offers no guarantee: employer authority and the AVA

If a genuine civil-law employment relationship did exist between the DGA and their own BV, that BV could simply second the DGA to the client — and the Wet DBA would have no bearing on that secondment, just as with an agency worker.

But for that, genuine employer authority must actually exist, and that authority must manifest itself in the general meeting of shareholders (AVA). Concretely, this means: the DGA must not be able to block their own dismissal. In a BV where the DGA themselves holds the majority of the votes, this is by definition not the case — the DGA cannot dismiss themselves against their own will. In that case there is no genuine employer authority, and therefore no "own" BV that can function as an independent employer in the way the Tax Authority views it.

Important nuance: even if there is a third party who can genuinely exercise authority in the AVA (for example, in a BV with multiple, independent shareholders), this is an important step — but it does not automatically make the BV "DBA-proof." It is a necessary condition, not a sufficient one.

4. Employer obligations: why the Tax Authority's search comes up empty with a BV

There is only genuinely an employment relationship under civil law if there is also a party that fulfils all employer obligations. Think not only of remitting payroll tax, but also, for example:

• the obligation to continue paying wages for 2 years during illness;
• obligations under the Wet Poortwachter (reintegration during illness);
• obligations under the WAADI (the Dutch law on the allocation of workers by intermediaries).

When engaging an agency worker or seconded professional, these employer obligations are fulfilled by the intermediary (the staffing or secondment agency, or a payroll company). When engaging a DGA through their own BV, these obligations would therefore have to be fulfilled by that BV itself.

This is where the problem arises: if false self-employment is established during an inspection, the Tax Authority looks for an employer that meets all employer obligations. With an agency worker or seconded professional, that search poses no problem. But with an "ordinary" BV owned by a DGA, that search often comes up empty: the BV has no sickness-absence policy, no reintegration process, no WAADI registration for this DGA. The result: the client itself is designated as the employer.

5. Practical situations: STAK structures and multiple BV structures

In practice, there are situations where it is not immediately clear whether someone should be considered a DGA or an employee. Two examples to help recognise this:

Example A: Stichting Administratiekantoor (STAK, a foundation holding voting rights)

Suppose the structure is as follows:

• The professional is a director of a Stichting Administratiekantoor, with joint authority (not sole authority).
• The Stichting Administratiekantoor holds 100% of the shares in BV X.
• BV X holds 100% of the shares in BV Y (the BV with which the contract is concluded).
• The professional, together with another professional, is a director of BV Y (each with sole authority).

How do you assess this? A STAK is a specific structure in which the board of the foundation retains full voting rights. The key question is: does our professional hold the majority of the votes within that STAK?

• Yes → the professional can block their own dismissal, and is therefore considered a DGA. A model agreement is concluded.
• No → the professional must be classified as an employee, and a supplier contract is concluded instead (i.e. not with the professional as a self-employed individual, but with the legal entity as a supplier of personnel).

Example B: Multiple BV structure

Suppose the structure is as follows:

• The professional is a director of BV X.
• BV X holds 100% of the shares in BV Y.

How do you assess this? Because BV X holds 100% of the shares in BV Y, the professional (as director of BV X) cannot be dismissed from BV Y against their will. The professional is therefore considered a DGA, and a model agreement is concluded — this can be done with either BV X or BV Y.

The common principle behind both examples: the question is always who actually holds the majority of the votes, and therefore who cannot be dismissed against their own will. Only once that has been established do you know whether you are dealing with a DGA (model agreement) or an employee (supplier contract).

6. A grey area: the DGA with a minority interest

There is one situation about which, even among tax specialists, there is still no complete consensus: the DGA with an indirect minority interest in the operating BV, held through their own holding company.

In practice, such a DGA often works on the basis of a management agreement between their own holding and the operating BV. This raises the question of whether this DGA is insured under the employee social security schemes. Based on the Regeling aanwijzing directeur-grootaandeelhouder 2016 (the 2016 Regulation on the Designation of Majority Shareholder-Directors), the Tax Authority almost always establishes an insurance obligation. At the same time, tax specialists argue that a properly agreed and actually performed management agreement between two BVs does not constitute an employment contract under civil law — and that there can therefore also be no (deemed) employment relationship, because that requires an employment relationship with a natural person, not a relationship between two legal entities.

This is therefore a topic where the Tax Authority's practice and the legal reasoning of tax specialists do not always align. For these situations: always involve Legal or a tax specialist when in doubt, and do not expect a standard assessment to provide sufficient certainty here.

7. Practical rules of thumb for a "clean" structure

Based on the above, a number of rules of thumb to limit the risk when engaging a DGA:

• Have the holding and the operating BV conclude the agreement, not the DGA personally. In a management agreement between two BVs, the DGA themselves is not a party to the agreement — this helps to avoid authority and a personal obligation to perform work.
• Treat the holding BV as a "mini staffing agency." You may indicate that you want to engage a specific person via the holding BV; that does not automatically mean the DGA personally commits to carrying out the work.
• Do not include provisions that only make sense for a natural person. A BV cannot fall ill and cannot take holiday leave — provisions about continued pay during illness or holiday entitlements therefore do not belong in a management agreement between two BVs. If a BV does not provide services, the fee simply stops (temporarily).
• Ensure that genuine employer authority actually exists within the AVA, if you want to rely on a secondment structure from the DGA's own BV — and realise that this is a necessary, but not a sufficient, condition.
• When in doubt, always assess the actual situation, not just the contract. Existing model agreements run until their end date, but do not in themselves provide certainty: practice is, and remains, decisive.

8. Why this matters to us

• This scenario occurs frequently: many professionals engaged through HeadFirst Group work through their own BV. The assumption "I have a BV, so I'm safe" is exactly the misconception we need to stay alert to.
• It directly relates to the broader assessment process: the questions in this document (employer authority, the AVA, employer obligations) are a deeper dive into the Deliveroo/Uber criteria and the step-by-step plan from the general Wet DBA knowledge document.
• Structures such as a STAK or multiple BVs do occur in practice, and without the right knowledge there is a risk of assessing them incorrectly — resulting in the wrong type of contract (model agreement versus supplier contract).
• Escalation to Legal is essential when in doubt, especially in grey areas such as the DGA with a minority interest.

9. Glossary (supplement)

Further information

This document is not legal advice. If in doubt about a specific DGA situation, a STAK structure, or a multiple BV structure: always consult Legal or a tax specialist, and never base the assessment on the contract alone — always also consider the actual working situation.