Author: blogger

Vehicle Tracking And Employee Rights.

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Many companies operating fleet who introduce a vehicle tracking system for the first time would, of course, be concerned in the impact on their employees when installing mobile workforce tracking or a GPS vehicle tracking across their entire operation.

The rise of commercial vehicle tracking across the relevant industries dependent on running the most cost-effective and efficient fleet they possibly can has meant many changes of working practice, not least for the vehicle drivers.

Introducing change of an employees working conditions, obviously requires great care to be taken, not least from a legal point of view and how it affects their individual contracts of employment.

Essentially, there are two key differences to be determined when instigating mobile workforce solutions:

Business use only or – Business and Personal use.

Business Use …

Fitting a vehicle tracker into a vehicle to be used only for day-to-day, strictly work related business, e.g. delivery van, it is recommended that employees driving the vehicle should be informed not only that the system will be fitted, but also why it is being fitted, how it works and exactly the nature of the data to be collected and what its use will be and how it is intended to benefit everyone at the company.

It is important that employees fully understand and appreciate all the objective reasons for wishing to obtain the information that will be provided from the system and why it is needed to help with business efficiency and improvement. Concerns and objections raised by employees obviously need to be discussed to reach agreement on fitting the system but legal advice should be sought if agreement cannot be reached.

Business and Personal use…

Essentially, the same considerations as in business use only but with the addition of taking into account that the system will provide data on the vehicles movements outside working time. Concern may be raised by employees that this data could be used to obtain information about their private lives and if so, could be seen as an infringement of their human rights.

Once again, it is strongly advised and to be made absolutely clear that the data collected by the system will only be accessed for data relating to working hours only, unless the vehicle is stolen or in an accident. Employees need to know as to who will have access to the data and its use for business.

Company contracts of employment should be redrawn so there should be clause which allows for the fitting and/or use of the system in any vehicles provide for company/personal use.

How To Employ Foreign Nationals In Your Singapore Company

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Every year about few thousand foreign owned companies get registered in Singapore. At the same time, the number of foreign professionals working in the country has gone up considerably and now over one-third of the entire working population in Singapore comprises of overseas professionals. Although this year saw a number of amendments introduced on the employment pass scheme to ensure only the best minds were able to live and work in Singapore, overall it is fairly simple for a company to employ foreign nationals in the country.
Firstly companies that need to employ foreigners for whatever reason must ensure they apply for an employment pass for each of the foreign professional they want to employ. The employment pass is actually the main type of work visa meant for foreigners that want to work in Singapore. Obtaining an employment pass takes about a month and authorities would check the background of both the professional who is being employed as well as the company that is employing the foreigner. With the recent changed introduced in the eligibility criteria for an employment pass, authorities in Singapore would look at the relevant work experience of the foreign professional, their educational qualifications as well as their existing and offered salaries in Singapore. The third criterion, that of salary is an important addition to the eligibility for employment pass as Singapore wants to ensure highly skilled professionals who already have a good professional background are able to enter the country.
Foreign companies that are about to incorporate in Singapore and need to bring in staff from their head office can apply for the employment pass immediately after receiving the certificate of incorporation. Again it must be noted that an application has to be submitted for each of the overseas staff members they wish to relocate. Ministry of Manpower (MoM) in Singapore processes employment pass applications and they would ensure that the employment offered is legitimate and whether all rules and regulations are being followed.
If a company in Singapore wants to employ a foreigner who is already working in the country for another company, they must endorse a new application for the foreign professional as each employment pass is connected to one employer. Moment the foreigner stops working for the company that originally employed them, their employment pass expires immediately. Hence for change of companies, foreigners need to apply for the employment pass again endorsed by the new company employing them.

Utopian Society Is Not Ideal

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Among the discoveries that occurred then was that of the New World by European explorers, and the curiosity concerning these voyages of exploration plus the advent of the printing press meant that printed records of the Renaissance explorations were [soon] everywhere available, and thus Utopia as a product of this exploratory context is undeniable. This is apparent in that its central character is a sailor and that his impressions of the imaginary island of Utopia constitute most of Mores text, which is a cross between travel narrative and social satire. The above quotation from Utopia depicts the Utopian lifestyle, one that has benefits and drawbacks, and the references to work, corruption, and poverty highlight key aspects of any debate considering whether or not one would like to live in Mores Utopia.

The above extract begins with the lack of distractions that might otherwise keep Utopians from their work, but the use of evading and usual convey the familiarity and routine that accompanies employment in Utopia. Everyone has a job, which is a comforting thought in light of the levels of unemployment and the resultant poverty existing in sixteenth- and twenty-first- century England. Elsewhere, we learn that Utopians, of both sexes, are guaranteed work that is suited to both ability and interest: of the other foresaid crafts every man learneth one. And the women [] and if any person [] be desirous to learn also another, he [] occupieth whether he will. However, this employment system is very regimented. Each day begins at four oclock in the morning and consists of three hours of work, followed by lunch and a two hour break, then another three hours of work, then supper, and then everyone goes to bed at eight oclock, and eight hours they give to sleep. In this light the Utopians strict workdays seem more like that of prisoners than of citizens of a democratic nation like Utopia purports to be.

The extract also lists the lack of distractions and vices in Utopia, such as alehouses, brothels, hiding places, and places for secret meetings. Clearly, the rulers of Utopia recognise alcoholism and adultery as dangerous threats to social order, and the absence of opportunities for drunken and licentious behaviour is evidence of the importance of strong family and marriage bonds in Utopia, or in other words, More [] makes family life the most important institution among the Utopians, with adultery being a potentially capital offence. Yet in spite of this firm image of family and marriage, the words no hiding places, no [] secret meetings and in full view of all convey a sense of exposure or surveillance. The latter quotation highlights the Utopians lack of privacy, which seems a high price to pay in order to be perceived as behaving in a respectable way. Thus, there seems to be very little choice but to conform to social rules.

The final sentence of the above extract paints a very attractive picture of the quality of life of the average Utopian in the fact that it there seems to be no poverty on the island. This is apparently because everyone share[s] everything equally, which refers to the Utopians distribution of private property, as is described elsewhere in the book: this they do freely without any benefit, taking nothing again of them to whom the things is given [] So the whole island is as it were one family or household. The Utopian distribution of wealth ensures that there is no poverty or beggary in Utopia and this is an admirable thing, which thus also criticises contemporary attitudes to material possessions, or in other words: Utopians not only do without money but also despise [] the symbols of wealth to which Europeans were so attached. However, such a system does not tolerate individuals desire for personal possessions and this intrudes on ones personal freedom, and so if this were enforced in a real community certainly many would resent having to give up such personal possessions and privileges.

In conclusion, Mores Utopia with its guarantee of jobs and its lack of vices and poverty has many attractions, but it is doubtful that any modern person would want to live there in light of its regimented schedules and its demands on our personal freedoms and possessions. Moreover, Utopia clearly criticises the contemporary social values and practices of Mores time, and in this sense it is difficult to come to any certain judgements as to how seriously More meant the book as a blueprint for a realistic alternative society.

Becoming A Self-employed Entrepreneur The Netherlands

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Registration in the Dutch trade register is compulsory for every company and every legal entity, including ‘freelance’ and ‘zzp’ (‘zelfstandige zonder personeel’ or self-employed without staff).

When you have decided to start your own business a new world is opening up, with a wide variety of possibilities. You could open a shop or start your own consultancy firm; become a full-time or a part-time entrepreneur. Clients may wish to hire you for advice or construction work.
Before plucking up which is planted, there is a time to plant. In other words: you will have to be prepared to tackle challenges as well – either as a provider of services or products, as a self-employed entrepreneur, a sole trader, an independent contractor, or as a freelancer or so-called “ZZP-er”.

The risky side of freedom and independence

Whether you offer services or products: you will do so at your own risk, expense and with full responsibility towards third parties. As well as this, being self-employed entails certain obligations, such as paying taxes and VAT and keeping records of your business activities. Preparing well is the best way to start. You are definitely not on your own; the Dutch business world offers plenty of competent assistance.

Starting point

Before you visit the Chamber of Commerce to register your enterprise, you should have considered the following:

* a permit to start a business in the Netherlands
* a business plan
* legal form and trade name of your enterprise
* taxation and necessary insurance
* business location, commercial lease
* a VAR’-statement from the Tax Administration, declaring you as a self-employed entrepreneur

Starting your own business

If you do not have the Dutch nationality, and want to start a business in the Netherlands, you will have to comply with particular IND (Immigratie en Naturalisatie Dienst, the Dutch immigration authorities) formalities. Even if you are not obliged to register with the IND (for almost all EU nationals) please do so all the same, as it may come in quite handy for other purposes.

The Dutch Chambers of Commerce are incorporated under public law and, as such, target their services at Dutch businesses across all sectors.

Dutch immigration authorities

The legal form of your enterprise makes no difference to the applicability of the rules by the Dutch immigration authorities: whether it is a one-man business, a Dutch private limited (BV), or a branch-office of a foreign company. The rules do not differ either whether you start an enterprise shortly after arriving in the Netherlands, or after having been employed in the Netherlands for some time. However, rules and formalities do differ broadly speaking for EU nationals and non-EU nationals. Please check also the IND Residence Wizard

EU, EEA and Swiss nationals

Nationals of one of the EU Member States, the EEA (European Economic Area), or a Swiss citizen, are free to live and work on a self-employed basis in the Netherlands and do not need an entry visa or a residence permit.

Even if you are not obliged to register with the IND, do so all the same, as it may come in handy in the future. For instance, when asked for proof of registration on taking out Dutch public healthcare insurance, a healthcare, housing or childcare allowance, a mortgage, or a phone subscription. Registration is free of charge. If you intend to stay over four months, you are always required to register at your local municipality. The expatdesk will help you out here.

Working on a self-employed basis when a EU, EEA and Swiss national

There are no specific IND formalities that have to be fulfilled for nationals of these states.

Different rules apply for citizens of Bulgaria or Romania as long as restrictions on the Dutch labour market remain in force. Nationals of these countries are advised to apply for a residence permit, which will be useful in a number of situations. The procedure is called “Application for assessment under the EU community law (proof of lawful residence)”.

Nationals of non-EU and non-EEA countries

If you are not a national of an EU or EEA country and not Swiss, you will need to apply for a residence permit in case you stay longer than three months in the Netherlands. A residence permit can be obtained from the IND.

If you are a national of a country subject to the Dutch visa requirement for more than three months’ stay, you will have to apply for a special visa: a provisional residence permit, an MVV (Machtiging Voorlopig Verblijf).

Working on a self-employed basis as national of non-EU / non-EEA country and non-Swiss
In this case you will have to meet several economic criteria before starting an enterprise in the Netherlands:

* You are qualified to run the business in question.
* You have a business plan.
* Your business serves an essential Dutch interest, i.e. “added value” for the Netherlands.

The IND does not weigh these criteria itself; the Ministry of Economic Affairs is requested to review your situation and to decide whether the business you intend to run will be economically interesting. If this turns out not to be the case, you cannot start your own business in the Netherlands.

Review of economic added value

* a permit to start a business in the Netherlands
* a business plan
* legal form and trade name of your enterprise
* taxation and necessary insurance
* business location, commercial lease
* a VAR’-statement from the Tax Administration, declaring you as a self-employed entrepreneur

Starting your own business

If you do not have the Dutch nationality, and want to start a business in the Netherlands, you will have to comply with particular IND (Immigratie en Naturalisatie Dienst, the Dutch immigration authorities) formalities. Even if you are not obliged to register with the IND (for almost all EU nationals) please do so all the same, as it may come in quite handy for other purposes.

The Dutch Chambers of Commerce are incorporated under public law and, as such, target their services at Dutch businesses across all sectors.

Dutch immigration authorities

The legal form of your enterprise makes no difference to the applicability of the rules by the Dutch immigration authorities: whether it is a one-man business, a Dutch private limited (BV), or a branch-office of a foreign company. The rules do not differ either whether you start an enterprise shortly after arriving in the Netherlands, or after having been employed in the Netherlands for some time. However, rules and formalities do differ broadly speaking for EU nationals and non-EU nationals. Please check also the IND Residence Wizard

EU, EEA and Swiss nationals

Nationals of one of the EU Member States, the EEA (European Economic Area), or a Swiss citizen, are free to live and work on a self-employed basis in the Netherlands and do not need an entry visa or a residence permit.

Even if you are not obliged to register with the IND, do so all the same, as it may come in handy in the future. For instance, when asked for proof of registration on taking out Dutch public healthcare insurance, a healthcare, housing or childcare allowance, a mortgage, or a phone subscription. Registration is free of charge. If you intend to stay over four months, you are always required to register at your local municipality. The expatdesk will help you out here.

Working on a self-employed basis when a EU, EEA and Swiss national

There are no specific IND formalities that have to be fulfilled for nationals of these states.

Different rules apply for citizens of Bulgaria or Romania as long as restrictions on the Dutch labour market remain in force. Nationals of these countries are advised to apply for a residence permit, which will be useful in a number of situations. The procedure is called “Application for assessment under the EU community law (proof of lawful residence)”.

Nationals of non-EU and non-EEA countries

If you are not a national of an EU or EEA country and not Swiss, you will need to apply for a residence permit in case you stay longer than three months in the Netherlands. A residence permit can be obtained from the IND.

If you are a national of a country subject to the Dutch visa requirement for more than three months’ stay, you will have to apply for a special visa: a provisional residence permit, an MVV (Machtiging Voorlopig Verblijf).

Working on a self-employed basis as national of non-EU / non-EEA country and non-Swiss
In this case you will have to meet several economic criteria before starting an enterprise in the Netherlands:

* You are qualified to run the business in question.
* You have a business plan.
* Your business serves an essential Dutch interest, i.e. “added value” for the Netherlands.

The IND does not weigh these criteria itself; the Ministry of Economic Affairs is requested to review your situation and to decide whether the business you intend to run will be economically interesting. If this turns out not to be the case, you cannot start your own business in the Netherlands.

Review of economic added value
The Ministry of Economic Affairs awards points for each criterion. You will need a minimum of 30 points for each criterion (total number for all criteria: 300).

The scoring system consists of three parts:

a) Personal experience (education, experience as a self-employed person, working experience);
b) Business plan (market analysis, product/service, price, organisation, financing);
c) Material economic purpose for the Netherlands (innovative, job creation, investments).

You should always contact the IND to find out about the procedure involved in testing the economic interest of the enterprise you intend to start. For nationals of some countries, for example Turkey, special rules apply on the basis of treaties between the EU and these countries. And when you are from the United States of America, it is important to know there is the so-called Nederland-Amerikaans’ vriendschapsverdrag’.

Taking your business from abroad

The Dutch comparative companies Act recognises all foreign legal entities except businesses owned by one man or one woman. If you run a one-person business in your country of origin and you can prove this, for example by submitting a copy of registration in a commercial register in that country, you can bring this enterprise to the Netherlands and have it registered at the Chamber of Commerce as a Dutch one-man or -woman business.

Other legal foreign entities or foreign business forms are simply registered as a foreign legal entity with commercial activities.

Please note that you will still have to comply with the IND residency rules

Starting a branch office in the Netherlands

There is a question of a branch when long-lasting business operations, which form part of the foreign enterprise, are (being) conducted in the Netherlands. A branch can be: a sales office or a production company, but also a representative office. It does not have an independent legal form, but is a part of the foreign enterprise.

Dutch law recognises foreign legal entities. In other words: the foreign legal entity wishing to start activities in the Netherlands needs not be converted into a Dutch legal form.

A business plan is essential

No matter small or big the business is, a business plan will help you identify areas of strengths and weaknesses.

Banks require a business plan when you take out a loan. Even if you do not need the latter, and financing your enterprise is not a problem, a business plan will definitely help you understand the impact of starting a business. Submitting a business plan is also one of the criteria set for non-EU and non-EEA nationals to be allowed to start their own enterprise in the Netherlands.

Get started: Write the plan yourself

Crucial questions you should ask are:

* Which legal form will best suit the enterprise?
* Which products or services will you offer?
* Who will be your clients?
* Promotional activities to get contracts?
* How to optimize visibility to your target group?
* Which prices and fees?
* Financial plan (available budgets, expected turnover, investments)?
* Which insurances do you need?
* Permits and/or licences required?
* Administrational organisation, which form?
* What should be included in your General Terms and Conditions if applicable?

Formats

Business plan formats can be obtained from various private parties that specialise in supporting starters. Just surf the internet. Small business planner at http://www.sba.gov/ is a useful site.

Employment law issue: employed or self-employed?

If you go freelance, you should pay extra attention to your situation, because the term ‘freelancer’ is not a definition recognized by law. Freelancers operate somewhere in between being self-employed and being in paid employment.

As an independent entrepreneur you pay taxes and contributions yourself, and you are not entitled to rights employers are: minimum wage, paid holidays, a holiday allowance, statutory safeguards against dismissal and a statutory notice period.

In order to designate the employment relationship while starting your business, it is important to consider different contracts and apply for a Verklaring Arbeidsrelatie (VAR) at the Tax Administration.

Employment on the basis of a contract and implied employment

Regardless of the title chosen for the contract with your client, it is considered an employment contract if the following criteria are met:

* your remuneration for the work performed can be seen as wages;
* there is an obligation to do the work yourself: you cannot send someone else to do the job for you. Having to be available for specific work, e.g. on-call service, will also be considered as work performed in employment;
* a relationship of authority: the employer can determine where, when and how the work should be carried out. This relation also exists if the work you do is an essential element in the employer’s business operations or if the employer’s profitability is at risk without you.

If the working relation does not show all characteristics of a “proper” employment relation, it may still be seen as one. This is called a notional employment relationship: although the employment relation has not been established explicitly, there is an implicit employer-employee relation. Consequently, the fee you charge is seen as wage, so, the employer will have to deduct taxes from your wages and pay national insurance and employee insurance contributions.

A notional employment relation exists if:

* you work for a client project for at least at two days a week;
* you earn more than 40% of the minimum wages for the project a week;
* the relation with the client lasts more than 30 days; a new contract within one month after the termination of the first contract is seen as continuation of the previous contract.

A notional employment does not exist if actual and practical independence can be proven, for which a VAR can be instrumental.

Commercial contracts

As a self-employed entrepreneur you or your client can initiate to formalise the contractor-client relation by entering into a commercial contract. Parties should always insist on putting down the arrangements agreed upon.
There are two types of commercial contracts:
1. Service agreement – Under this type of contract you are obliged to perform to the best of your ability, committing yourself to do your client’s work without being employed by him. The work is usually classified as services’.
2. Contractor agreement – Under this type of contract you have a specific target obligation. You commit yourself to produce a concrete, tangible object at a certain price.

Criteria for legal independence: Actual circumstances are decisive here. An official statement signed by client and yourself that the contract is a commercial one is helpful proof. Criteria are:

* the degree of independence and absence of supervision/authority;
* permanence;
* pursuit of profit;
* clientele.

Not just these criteria, but their interconnection especially plays a decisive role.

De Verklaring Arbeidsrelatie (VAR)

In order to designate the employment relationship you can apply for a Verklaring Arbeidsrelatie (VAR) at the Tax Administration. The VAR is an official statement. Based upon the applicant’s information the Tax Administration will define income as:

* Income earned in employment: the freelancer will have a VAR income.
* Income earned from other proceedings: the freelancer will have a VAR-row.
* Profit from enterprise: the freelancer will have a VAR-wuo.
* Partnership’s own risk and account: the freelancer will have a VAR-dga.

VAR-income and -row: employed or not?

With a view to the VAR-income and row, the employer will have to define and check whether he should pay income tax and employees insurance premiums, based upon the existence of an employment contract or otherwise. Explanatory assistance but no definite answer! – can be found at the website of the Ministry of Finance. The Tax Administration may conclude differently.

VAR-wuo and dga: certainty in advance

Only VAR-wuo or -dga supply the employer beforehand with complete financial certainty provided he meets the following conditions:

* The freelancer’s activities should be similar to the VAR’s description. So, the freelancer is not entitled to carry out IT work if the VAR denotes carpentry.
* The freelancer is on the job during the validity of the VAR (1 calendar year).
* The VAR should be the authentic original.
* The employer should determine the freelancer’s identity on the basis of a valid proof of identity (not driver’s licence). Copies of the VAR and proof of identity should be kept in the administration for seven years.

Having acted this way, the employer has a solid defence in case the Tax Administration or UWV may reach another verdict afterwards. So, it may be wise for both freelancers and employers to object against a VAR-income or -row.

VAR application

Bearing in mind the utmost importance of the VAR-outcome, it is obviously important to carefully fill out the VAR-form. Only the freelancer him/herself is allowed to apply for a Verklaring Arbeidsrelatie (VAR); the employer is not entitled to do this. A directeur-groot aandeelhouder (DGA) should apply for a VAR in case of external consultancy.

The Tax Administration provides a digital VAR application form; to which you will get a reply within 8 weeks. If additional information is needed, the Tax Administration will contact the applicant.

Please note the following when filling out the form: The Tax Administration considers request as a total, coherently, and takes the activities into account. If not all answers are favourable it does not necessarily mean that no VAR-wuo will be given. For example: an interim manager with two or more employers can still be entitled to a VAR-wuo.

The freelancer should write down reasonable expectations. If, however, the actual situation afterwards turns out to have been differently, this will not have any consequences as long as the deviation is within normal risk of enterprise limits. For example, the freelancer expected to have 3 or more employers, but due to a recession this turned out differently.

The freelancer has to fill out the form to the best of his knowledge and should not deliberately misrepresent the state of affairs. If this should afterwards be proven to have been the case, the Tax Administration will recover the indebted taxes and premiums from the freelancer.

Some of the questions need a yes’ or no’ only; choose the nearest suitable.

Relation employer/former employer

As a part-time independent entrepreneur / part-time employee you could get involved in a conflict of interest with your (former) employer. If you intend to provide services, comparable to the ones he provides, you better ask his permission/advice to run your own business.

Starting a business as a full-time independent entrepreneur you should be aware of a possible conflict of interests as well. You probably signed a non-competition clause within your employment contract that remains valid after termination of employment. In any case it is wise to contact/consult your (former) employer of your intentions.

Legal forms and registration of an enterprise

The Chambers of Commerce can answer your questions about the legal environment of your business. Seminars and other regular services are available.

The majority of starting entrepreneurs either choose a one-man business or a general partnership as the legal form for their business, according to their preference on doing business by themselves or in cooperation with others.

In order to accommodate the starting entrepreneur or professional, Dutch law recognizes various legal forms, such as a one-man business, a private limited company (BV), a partnership or a limited partnership. The main issues at stake are the matter of liability if your enterprise should run up debts, and which tax regime applies.

One-person business

One-person business (lit. one-man in Dutch: eenmanzak) is also referred to as sole trader or sole proprietorship or independent contractor.

If you start a one-person business you will be the fully independent founder and owner. More than one person may work in a one-person business, but there can only be one owner. A one-person business can also employ personnel.

Setting up

You can establish a one-person business without a notarial deed. Registration in the Trade Register is mandatory. As a private individual you can only register one one-man business. However, you can have more than one trade name and carry out various business activities under different trade names. These activities can be carried out at the same or at another address, as a branch office of the one-man business.

Liability

As the owner of a one-person business you are responsible for everything concerning your enterprise; for every legal act and all its assets and liabilities. No distinction is made between private and business property. Thus, business creditors can seek recovery from your private property and private creditors from your business property. If your one-man business goes bankrupt, you yourself go bankrupt as well.

If the owner of a one-person business should be married in a community of property regime, the creditors may also lay claim to the partner’s property. Partner liability can be avoided by a prenuptial or a postnuptial agreement drafted by a civil-law notary. However, since partners are usually requested to co-sign when taking a loan, the agreement may not offer the protection expected. A civil-law notary can provide more information.

Taxes and social security

The profit made in a one-person business is taxed in box 1 income tax. If the Tax Administration fully considers you an entrepreneur, you are entitled to tax allowances such as the entrepreneur’s allowance, investment allowance and the tax-deferred retirement allowance.

The owner of a one-person business cannot claim social benefits under the Sickness Benefits Act, the Work and Income Act and the Unemployment Insurance Act. Therefore, it is advisable to take out insurances to cover these risks. You will qualify for the following national insurance schemes:

* General Old Age Pensions Act
* -Surviving Dependants Act
* Exceptional Medical Expenses Act
* General Child Benefit Act

Continuation of the business activities and business succession

With a one-man business no distinction is made between private and business. If you die, both business and private property will fall into your heirs’ estate. You will need to make provisions to guarantee your business’ continuity. A tax consultant could provide more details.

B. General partnership, the “VOF”

A general partnership is a form of cooperation in which you run a business with one or more business partners. You and your partner(s) are the associates or members of the general partnership. One of the characteristics of this legal form is that each partner contributes something to the business: capital, goods, efforts (work) and/or goodwill.

Setting up

A partnership contract is not a statutory requirement for the formation of a general partnership, but it is, of course, advisable to put down in writing what you and your business partner(s) have agreed upon. A partnership contract could arrange the following matters:

* name of the general partnership;
* objective;
* contributions by partners in capital, knowhow, goodwill, assets and efforts (work);
* distribution of profits and offset of loss;
* allocation of powers;
* arrangements in case of illness;
* arrangements for a partner’s days off/ holiday.

Liability

An important characteristic of the general partnership is the joint and separate liability of the partners. Each partner can be held fully liable – including private property – if the general partnership fails to meet its obligations, even if these obligations were entered into by another, authorised partner. Creditors of the partnership may seek recovery from your business property and your private property and the property of the other partner(s). Restrictions agreed upon in the partners’ authority have to be officially registered in order to gain legal effectiveness towards third parties.

The general partnership usually has separate capital’, i.e. the business capital contributed by the partners, which is kept apart from their private property and capital. This capital is to be solely used for business purposes. Should one or more creditors seek recovery from the partnership – for instance in the case of bankruptcy – they could do so from the separate capital. If this should be inadequate to pay the partnership’s debts, creditors may seek full recovery from the partners’ private property. If so, you could hold the other partner(s) liable for having failed to meet their obligations, but only after the creditors have been paid. In private matters creditors of partners cannot seek recovery from the partnership’s business assets or the private property of the other partner(s).

Because of this partners’ broad liability it is advisable to have a prenuptial or postnuptial agreement drafted if you are married under a community of property regime. A civil-law notary could provide you with more information.

Taxes and social security

Each partner will pay their own income tax on his profit share. If the Tax Administration sees the individual partner as an entrepreneur, they are entitled to all kinds of tax allowances, such as the entrepreneur’s allowance, investment allowance and the tax-deferred retirement allowance.

As far as social security is concerned, the same rules apply for the entrepreneur partner as for the owner of a one-person business.

Continuation of the business activities and business succession

Under Dutch law the general partnership ends when one of the partners resigns or dies. In order to secure the continuation of the general partnership, the partners can include a clause in the partnership contract arranging for the other partners to continue the general partnership with or without a new partner or to terminate it.

C. Limited partnership, the “CV”

A limited partnership, the “CV”, is a special type of general partnership (VOF). The difference is that the CV has two types of business partners: general, and limited or sleeping partners. The latter are only financially involved; they cannot act on behalf of the partnership. Besides, the name of a limited partner cannot be used in the trade name of the limited partnership.

Setting up

A partnership contract is no statutory requirement for a limited partnership, but, again, partners better put down the agreements. Apart from the matters mentioned in the VOF, the contract should arrange the distribution of profit between general and limited partners. When registering a limited partnership in the Trade Register, the personal details of the general partners are listed; the details concerning the limited partners are restricted to total number and their contributions in the partnership.

Liability

General partners can be held fully liable if the partnership fails to meet its obligations. Bankruptcy of the limited partnership will automatically lead to the general partners’ bankruptcy (not applicable to limited partners). A limited partner can only be held liable to the maximum sum contributed to the partnership. However, should the limited partner act on behalf of the partnership, he will be seen as a general partner and fully liable, in which case creditors of the partnership can lay claim on his private property as well. Restrictions agreed upon in the partners’ authority have to be officially registered in order to gain legal force towards third parties.

The general partners’ liability in a limited partnership is quite broad, so, if partners are married under a community of property regime they are advised to have a prenuptial or postnuptial agreement drafted. A civil-law notary could provide more information.

Taxes and social security

General partners pay income tax on their share in the profit. If the Tax Administration sees the individual partner as an entrepreneur, they are entitled to various tax allowances, such as the entrepreneur’s allowance, investment allowance and the tax-deferred retirement allowance. As far as social security is concerned, the same rules apply to the entrepreneur partner as to the owner of a one-person business. Limited partners, who cannot be held personally liable for the enterprise’s debts, are not seen as entrepreneurs by the Tax Administration.

Continuation of the business activities and business succession

Under Dutch law the limited partnership ends when one of the partners resigns or dies. In order to secure the continuation of the limited partnership, the partners can include a clause in the contract arranging for the other partners to continue the partnership with or without a new partner or to terminate it.

D. Nike partnership, the maatschap’

The partnership referred to as maatschap’ under Dutch law differs from the general partnership and the limited partnership in that it is a form of cooperation established by professionals such as doctors, dentist, lawyers, accountants, physiotherapists etc., rather than a cooperation established for the purpose of doing business. The partners are referred to as maten’ instead of partners’. Each maat’ contributes personal efforts, capital and/or assets. The purpose is to share the income earned on the one hand and the expenses incurred on the other.
Setting up a professional partnership

A partnership contract is no statutory requirement for the formation of a professional partnership, but partners better lay down their agreements with the other professionals in a partnership contract. This partnership contract could arrange the following matters:

* contributions made by the partners;
* distribution of profits, pro rata each partner’s contribution – distributing all profit to one partner is not allowed;
* allocation of powers – each partner is entitled to perform management acts, unless agreed upon otherwise; as of 1 July 2008 the professional partnership has to register in the Trade Register. This does not apply to partnerships that only act internally, such as a partnership in which costs are pooled.

Liability

Each authorised partner can enter into a contract, thus binding the partnership: all partners. Each partner can be held liable for an equal part. If a partner should act beyond his authorization, the other partners will in principle not be held liable: the partner in question is the only partner that has bound himself. A professional partnership has no separate capital’ from the private assets of the partners. Creditors having a claim on the partnership can only seek recovery for equal parts from the individual partners; these creditors do not rank above creditors who have a claim on the private assets of a partner. To a married partner the same reservations apply as to the general partners in general partnerships and limited partnerships. They are advised to have a prenuptial or postnuptial agreement drafted. A civil-law notary could provide more information.

Taxes and social security
Each partner pays income tax on his profit share. If the Tax Administration sees the individual partner as an entrepreneur, he is entitled to various tax allowances, such as the entrepreneur’s allowance, investment allowance and the tax-deferred retirement allowance. Regarding social security the same rules apply to the entrepreneur partner as to the owner of a one-man business

Continuation of the business activities and business succession

Under Dutch law the professional partnership ends when one of the partners resigns or dies. In order to secure the continuation of the partnership, the partners can include a clause in the contract arranging for the other partners to continue the partnership with or without a new partner or to terminate it.

E. Private company with limited liability, BV’

In contrast to the legal forms described above – enterprises run by natural persons – the private limited is a legal person: a person having rights and obligations, just like a natural person. The natural person who has incorporated the private limited cannot be held liable, in principle, for the debts incurred by the private limited. The BV itself is seen as the entrepreneur, whereas the natural person who is appointed director merely acts on behalf of the BV and cannot be held personally liable for his acts. A private limited company can be incorporated by one person a sole shareholder BV or by more persons. The capital of a private limited is divided in shares.

Incorporating

This involves a number of statutory requirements, most important of which:
Incorporation takes place through a notarial deed. This should include the articles of association of the company. The civil-law notary will check the legal contents of the articles.
A certificate of no-objection from the Ministry of Justice must be submitted before the incorporation can be effected. The Ministry checks whether the person incorporating the company has ever been involved in bankruptcy proceedings or fraud cases.

The incorporation of a BV requires a minimum capital of EUR 18,000 (cash or in kind) in the private limited.

Liability

The shareholder’s liability is limited to the total sum of his participation. Since the BV is a legal person, having its own independent rights and obligations, the persons involved – directors and supervisors – cannot be held liable for the debt of the company. In other words: the company’s creditors can never seek recovery from the private assets of these officers. However, a company director or officer may be held liable as a private person if he has acted negligently or culpably. If they are responsible for the company’s bankruptcy because of wrongful or fraudulent behaviour in the company’s policy, creditors of the company may file a claim against them.

In the formation phase of the company, a director may be liable for the company’s acts. This liability ends as soon as the legal person is incorporated and the acts are confirmed by the company. As long as the company has not been registered in the Trade Register, directors’ and officers’ liability continues. In practice, limited liability often does not apply because banks require the director and principal shareholder of the company to co-sign for loans taken out on behalf of the BV.

Taxes and social security

The private limited pays corporation tax also referred to as company income tax on the profits earned. The BV’s director and shareholder are employed by the BV His eligibility for social security under the Dutch social security laws depends on the relation of authority between himself and the private limited. A relation of authority is considered not to exist if:

* the director, possibly with his or her spouse, can cast more than 50% of the votes in the shareholders’ meeting;
* two thirds or more of the shares are held by the director and/or close relatives up to the third degree;
* the director cannot be dismissed against their will.

Without a relation of authority, the director and shareholder cannot rely on the social security insurances. He will have to take out his own insurances; to him the same rules apply as to the owner of a one-person business.

Continuation of the business activities and business succession

Continuation of the company is secured by the fact that the BV is a legal person that exists independently from the persons having incorporated or managing the private limited. When the director dies, the continuation of the enterprise is not at risk, viz. the enterprise is run by the BV and a new director will have to be appointed.

A private limited can be sold in two different ways:

* BV’s shares are sold;
* BV’s enterprise (machines, inventory, stocks, etc.) is sold.

If the shares are sold, the proceeds are subject to income tax (box 2) if the shareholder has a substantial interest (holder of a minimum of 5% of the shares).

If the enterprise is sold, the BV will have to pay corporation tax on the profit or book profit on the sale. If the shareholder of the BV selling the enterprise is a BV itself, the structure is referred to as a holding – advantage of which: the holding will in principle have to pay taxes on the proceeds.

Registration of your enterprise

Before you are allowed to start your business operations, you have to register your enterprise in the Dutch Trade Register, which is administered by the Chambers of Commerce. Registrations in the Trade Register are public; everyone can check whether a particular person is authorised to act on behalf of an enterprise and which legal form it has: a one-man business, a partnership or a private or public limited.

The Chamber of Commerce could run a trade name investigation for you to make sure that the selected trade name does not infringe the rights of other enterprises. This trade name investigation is not free of charge.

Holland Gateway (the cooperation of the Netherlands Chambers of Commerce, Ministry of Economic Affairs and other official institutions) is located at Amsterdam Schiphol Airport. This bureau promotes the ease of doing business in the Netherlands.

How to register your enterprise

Registration requirements

Once you have decided upon your business’ legal form, you can have your enterprise registered at the local Chamber of Commerce. Registration should take place within a period of one week preceding, and one week following the actual commencement of business activities.

Without registration in the GBA, you will need to submit authenticated proof of your residential address abroad. The person registering the business has to submit a valid proof of identity, which document has to be personally submitted at the Chamber of Commerce. The following documents are accepted as valid IDs:

* a valid travel document (passport or European ID card);
* a valid Dutch driving licence (non-Dutch driving licence not accepted);
* a residence permit issued by the IND;
* a Dutch refugee passport
* a Dutch aliens passport

If you do not start your business at your home address but at a location you have e.g. rented, you will also be requested to show the lease to confirm the business address.

Once the registration has been completed, you will be given a unique eight-figure registration number. This KvK number should be referred to on all your outgoing mail. Free of charge, you will receive an extract of your registration, a KvK-uittreksel'(excerpt).

Who can register the enterprise

When an enterprise is registered at the Chamber of Commerce, it is of the utmost importance that the registration forms which are submitted have been signed by the right person. Depending on the legal form of the enterprise, the forms can be registered in the Trade Register by:

* the owner of the one-man business (registration of a one-man business),
* the partners (registration of a general partnership, VOF, and a professional partnership, maatschap’)
* or the general partners (registration of a limited partnership, CV’)
* If the enterprise is a legal person, a BV, the civil-law notary will usually see to the registration formalities.

The persons who should register the enterprise and sign the registration forms can also be held responsible in the event an enterprise is not registered.

In special circumstances other persons may be authorized and/or obliged to see to the registration of an enterprise. The Chamber of Commerce can advise you on these circumstances.

Registration forms

The registration forms can be downloaded from the Chamber of Commerce website. As a statutory requirement, all forms are in Dutch and have to be completed in Dutch. Translations in English of forms 6, 11 and 13 are available to assist you while filling in the Dutch form to be handed in.
Registration is not free of charge. When you register a business, a fee will be due for the calendar year the enterprise is registered in. After that initial year, an annual fee will be charged in the first quarter of each year. The total sum of this contribution depends on the legal form.

After registration

Once the enterprise has been registered, it is the owner or partner’s responsibility to keep the information up-to-date. With a BV the manager authorised to act on behalf of the BV is responsible.

Permits and Licences

Most business activities can be performed without any permits or licences, but for some activities, like catering business, transport or taxi firm, you do need a licence. And an environmental permit may be required if your products or business operations negatively affect the environment. Permits and licences can be applied for at the municipality or at the provincial authorities.

Check how you can use your degree or diploma for your business in the Netherlands. International Credential Evaluation: http://www.idw.nl/international-credential-evaluation.html

Some sectors require registration with an industry board or a product board. Registration is a statutory requirement, based on the Act on Business Organisations. An industry board is a kind of interest group for a specific sector. The same applies to a product board, which includes all enterprises in a production chain, from producers of raw material to manufacturers of end products.

Termination / dissolution of the enterprise

When transferring or selling your company, you will have to comply with a number of rules and regulations. You should also enter information about the sale into the Trade Register and reach a settlement with the Tax and Customs Administration. A business transfer within the family involves several other tax aspects.

Expatica will publish Becoming a self-employed entrepreneur the Netherlands (part 1) on Sunday 27 February.

Chambers of Commerce
The Dutch Chambers of Commerce provide information on starting a business, legal forms, registration in the trade register, international trade etc. We have accumulated knowledge, contacts and partnerships, which makes it the essential reference point for every firm doing or seeking to do business.

Drop by for specific information
Apart from general information, the Chambers of Commerce will be glad to provide you with further details regarding your specific position: either at the start of your business or while running it.

If you are located and/or interested in the Region Amsterdam:
Do call 020-5314684 for a consultation with one of our specialists of the Bedrijfsvoorlichting department.

Fighting Breach of Employment Contract by Employer

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Does a contract outline the terms and conditions of your employment? An employment contract is a good way to avoid legal disputes between the employer and the employee. Whether it is a verbal or a written one, there is no guarantee that there would be no breach. If this happens, you need a consultation with an employment lawyer.

How does an employment contract benefit an employee? This agreement provides in specific terms what the employer expects from an employee. This helps you to understand the way things work, and the way you need to conduct yourself.

How does the contract benefit an employer? The employer may use this as a tool to safeguard company information, especially the confidential things the employee learns during their job tenure.

Why is it better to get this in writing? Most Florida workers are at will’ and there are no written contracts outlining the terms and conditions of employment. Getting a contract in place is good for employers as well as employees.

Moreover, if these provide alterative dispute resolution tactics, it may also lessen the chances of litigation. If the agreement lists the possible circumstances under which you may face termination, and your termination does fall in these classifications, you may not be eligible for filing a wrongful termination complaint.

What should you do if you suspect a breach of contract? The first thing to do is find a competent Fort Myers employment lawyer. Why is this so important? Just a suspicion of this breach is not enough, you need a legal practitioner to analyze the terms in the contract and ascertain whether the employer’s conduct is a breach or not.

Suppose you face a termination from job. If your employment contract prohibits termination before a certain period, this may be a breach. However, only a lawyer can analyze your contract and assess whether it is so.

If you do have adequate evidence to establish this breach, you may file a case at a court of law. Your employment lawyer can handle the necessary filing and the ensuing court proceedings.

What are the possible remedies available? It depends on the exact circumstances of your case. However, there are two possible solutions:

*The court may order performance as per the contract clauses *The court may order monetary damages including legal costs

The most important thing to do is find a good lawyer to know for sure whether there was a breach before you decide to file a case against your employer.