May the workforce be with you!
The VAT problem
What could be the problem with such a contract? The fact that, upon a tax audit, the tax authority (NAV) may conclude that the contract is more of a workforce lending contract than a service or agency contract, and it may be tempted to reclassify it. However, service/agency contracts and workforce lending contracts are treated differently in terms of VAT. Whereas contracts belonging to the former category fall within the scope of the general VAT system, workforce lending services fall under reverse charge VAT.
These service/agency contracts entail, therefore, a significant tax risk for the client. If the tax authority (NAV) finds that the parties have in fact agreed to hire personnel, the client will not have the right to deduct the VAT charged by the service provider and will have a VAT shortfall as a result. If the service provider co-operates with the client during the tax audit and is willing to amend the invoice, the audit could lead to a smaller tax shortfall and a moderate fine. If, however, the contractor is no longer reachable, the contract in question dates back several years, the contractor was acting in bad faith or there is any other technical problem, it will be virtually impossible to avoid more serious pentalties.
When is it a workforce lending and when is it a service contract?
However, it’s not easy to determine where the boundaries of the two types of contract lie. On the one hand, a hint is provided by the Labour Code, which says that the employer has the right to second temporarily its employee at a different workplace or at another employer, as long as this secondment does not exceed forty-four days a year. Does this mean that employment beyond this period at another workplace or employer automatically classifies as the contract as workforce lending? Not necessarily. Other circumstances of the posting must also be taken into account, such as whether the employee was specifically recruited for that purpose.
Recent court rulings may also provide guidance on the matter. According to these, whether an agreement qualifies as a service contract or a workforce lending, it makes a difference whether the employee is only employed for a specific project at another workplace or to perform recurring tasks in general. When distinguishing between the two types of contract, it must also be taken into account whether the entrepreneur is represented at the client’s premises beyond the employee’s personal work. If the client is free to issue instructions to the employee without any restriction, that also reinforces the workforce lending character of the contract. It also makes a difference which contracting party organises the work of the employee, whether the contractor provides replacement in the event of illness or vacation, who provides the work equipment (e.g. who provides the cleaning tools) and, last but not least, the basis on which the parties calculate the contractor’s fee (on a project basis or in proportion to the number of employees posted). Unfortunately, in practice these conditions are not always coherent and therefore rarely point clearly towards one or the other type of contract.
How to proceed?
Workforce lending is an activity strictly regulated by law. The lender must be registered with the state employment body, and comply with various conditions. Therefore, unless the service provider expressly intends to pursue this activity on a commercial and regular basis, the parties should seek to formulate their agreement within the framework of an agency or a service contract. However, in order for this to stand the test of a tax audit - or even a labour inspection - it is advisable to avoid the above-described characteristics of workforce lending as much as possible.
By Jalsovszky Law Firm.