The ruling of the Arnhem-Leeuwarden Court of Appeal (28 October 2025) concerns the question of whether a director/major shareholder (“DGA”) who is hired out by their own holding company to the operating company in which they hold a stake can be classified as an employee under an employment contract. This applies even where the formal structure has been set up differently, with an official management agreement concluded between the holding company and the operating company, and the holding company invoicing the operating company. Under certain factual circumstances, you as the DGA of the holding company can nevertheless be regarded as an employee!
The core of the case in brief:
A director worked for an operating company through his personal holding company. From 2018 onwards, he was no longer registered as an employee for employee insurance purposes. The tax authorities imposed additional payroll tax assessments for the years 2018-2020. The Court of Appeal ruled that, despite the use of a holding company and the absence of a written employment or management agreement, there was in fact a private-law employment relationship under Article 7:610 of the Dutch Civil Code. The assessment is based on weighing up all the factual circumstances of the case (now the holistic “Deliveroo” weighing test): personal labour, pay, a relationship of authority, integration within the organisation, the manner of remuneration, and external entrepreneurship.
Because the DGA held less than 30% of the shares and therefore did not meet the criteria for “director/major shareholder”, the exemption did not apply and payroll tax remained due. In essence, the Court of Appeal is saying: the fact that invoicing takes place through a BV holding company or another type of structure is not decisive. What is decisive is the factual relationship between the individual and the operating company. In short: the de facto working relationship carries more weight than the legal structures involving BVs.
What does this mean in practice for entrepreneurs with a holding company?
If, as a majority shareholder, you are in a holding structure together with a minority shareholder, with operating companies attached to it, you need to be alert and have these working relationships assessed by an expert in the event of:
- Individuals, contractors, freelancers, etc. who, through their BV holding company, carry out long-term, factually embedded work for your operating companies;
- Minority shareholders who participate through their personal holding company and charge a management fee, because in that situation the tax “director/major shareholder exemption” may no longer apply, and that person may also be able to bring employee claims.
Key points to note:
- Factual situation ≠ legal structure
Even where invoicing takes place through a holding company, the court can conclude that an employment contract exists.
- Risk of additional payroll tax and social security assessments and employee claims
If employee status is established, the tax authorities can still impose payroll tax, with retroactive effect of up to 5 years, and the individual concerned can also bring employment-law claims.
- The burden of proof lies with the tax authorities, but the facts must stack up
In this case, the burden of proof lay with the tax inspector, and the inspector succeeded: the “continued salary payment” arrangement, the actual payment of wages, and the relationship of authority were decisive.
- Bear in mind the “less than 30% shareholder” threshold
Where the DGA does not meet the threshold for major shareholder, the (potential) exemption no longer applies and payroll tax is more readily due. This may be different again where shareholders hold equal stakes (i.e. each shareholder holds 25%).
Conclusion: the message is clear: a “formal BV structure” is no longer sacrosanct. The ruling in question, ECLI:NL:GHARL:2025:6774, makes clear that the tax authorities and the courts are no longer blind to legal or tax structures. What counts is the factual reality. For entrepreneurs with holding companies, this is a wake-up call: what you have arranged on paper (through a holding company, management agreement or invoicing) can be assessed differently in practice.
If, like many DGAs, you work through a holding company, it is advisable to have your structure reassessed from a legal and tax perspective and, where necessary, revised in good time, to avoid unpleasant surprises with the tax authorities.
We, the corporate lawyers at The Legal Company, are experts in assessing and weighing up the structures and working relationships described above and whether or not there is disguised employment (false self-employment). Please feel free to contact us at hvercammen@thelegalcompany.nl or call 020-3450152.
