As soon as an employee has an interest of at least five per cent in a company or cooperative, he or she is subject to the customary wage rules. This also applies to director-major shareholders (DMS).
The Tax Authorities expect you, as a director-major shareholder, to receive a salary that is normal for the level at which you work and the amount of work you perform. This means that you cannot simply renounce wages or pay yourself too low a salary to keep money in the BV.
The regulation is intended to prevent shareholders from ‘hoarding’ the income of their BV by not paying out wages but only paying out dividends. This is because the wage tax is higher than the tax on the distributed dividend.
The salary must be at least the highest of the following amounts:
- 75% of the wage of someone with a similar employment;
- The wage of the highest earning employee;
- The statutory lower limit (determined annually).
The statutory lower limit for the customary wage scheme has been set at €48,000 in 2022.
The salary of a DMS also falls under the customary wage regulation, as a result of which wage tax must always be paid. The trick is to determine the salary amount in such a way that the tax rate to be paid is optimal.
The wage may be set at a lower amount if the following is the case (Section 12a, paragraph 2 of the Dutch Wages and Salaries Tax Act):
- You make it plausible that the wage from the most comparable employment is lower than € 48.000. You then set the wage at 100% of the wage from the most comparable employment;
- You make it plausible that 75% of the salary from the most comparable employment is lower than the salary from the highest earning employee of yours. You set the wage at 75% of the wage from the most comparable employment with a minimum of € 48,000.
Innovative start-ups can also opt to pay a lower customary wage than a DMS would normally have to pay in 2022. By paying a lower customary wage, the liquidity position of the BV will improve. This is stated in the Tax Plan 2022 that was announced on Budget Day.
They may take the statutory minimum wage as the customary wage. Or, if this is lower due to, for example, part-time work, the salary from the most comparable employment. The latter must be plausible.
An entrepreneur prefers to pay himself dividends rather than salaries, but where is the line and what are the guidelines you must adhere to?
To be regarded as a start-up, you must meet the following conditions:
- The bv has an S&O declaration in the calendar year;
- The BV is entitled to the increased start-up percentage in the calendar year;
- The BV does not exceed the de minimis ceiling for state aid of the European treaty. You can prove this with a ‘de minimis declaration’. You can apply for this statement at rvo.nl.
Lower than minimum wage
The Tax and Customs Administration now states that the customary wage may be lower than the statutory minimum wage. There may be commercial grounds for assuming a lower wage than the statutory minimum wage, for example in the event of a structural loss situation whereby the continuity of the business is jeopardised. This also applies to startups and start-up companies.
You may assume a lower wage if the PLC is unable to pay the customary wage due to the start-up of the company, for example, because the PLC has made many investments or has a low cash flow. The basic principle is that the customary wage is not lower than the statutory minimum wage that corresponds to the number of hours worked by the tax-exempt holder.
You may do this for a maximum of 3 years from the moment the company or cooperative is subject to withholding tax. You can shorten the period of 3 years if the company starts as a sole proprietorship and is incorporated into a private limited company (bv) or cooperative (coöperatie) at a later stage. You must then deduct the period in which the company was run in the name of or for the account of the owner of the private limited company or another person from the 3 years.
Do you want to know more about the customary wage regulation, please contact the advisors of AAme.