Couple pays for social security debts painter: 64,000 euros fine
On 13 April, the Limburg nursing home owners Lode and Marleen were presented with a bill of 64,212 euros from the National Social Security Office. To be paid within the month. Cause: the bankruptcy of a painter who was involved in large-scale new construction and renovation works on their retirement home in 2008.
As it looks now, private individuals will also have to check whether their contractor has debts in the future. Otherwise there is a risk of serious additional costs.
“It is difficult enough to be in order with the administration and legal obligations. We can't know all the laws by heart," Marleen wonders. She refers to the so-called withholding obligation.
An independent client with a company, who has work carried out by a contractor, must check whether this is on the blacklist of the RSZ. In that case, the client must withhold 35% of the contract amount (this is the invoice he receives from the contractor) and transfer it to the RSZ services.
“Nobody ever told us anything about that blacklist,” Lode says. “And when I spoke to the architect about it, he barely knew what it was about. While I think it's really his job to inform us about this."
Lawyer Christophe Lenders of GSJ lawyers, specialized in contracting law, clarifies. "There is nothing in the law that states that the architect must inform the client of the withholding obligation. Architects have an information obligation, even when choosing a contractor.
How far this obligation extends can lead to discussion and also depends on the identity of the parties and the agreement concluded between them. Nevertheless, it seems to me difficult to defend that the architect should, each time the client pays, check whether or not the contractor has social and tax debts and whether there is an obligation to withhold. The architect often does not know when a client pays the contractor.
Because it is assumed that in principle everyone should be aware of his legal obligation, even when no architect is involved, you will have to check in advance and during the payment whether the other party is okay. Fortunately, this withholding obligation does not apply to private individuals who build for private purposes.”
Lode also questions the transparency of the famous blacklist. “It's kind of like a hidden list. Even the RSZ people have told me that. You can find him very hard. And if you do find it, you need to enter the contractor's company number. We have checked: 18 of the 20 quotations do not even have a company number!”
Joint and several liability of 96,489 euros
Lode and Marleen were lucky with their fine of 64,212 euros. After all, the Royal Decree of 27 December 2007 provides that the joint and several liability (the total amount against which the client can be held liable) in the event of non-compliance with the withholding obligation is composed of the full contract amount, plus a deduction of 35% of that amount, plus a supplement of another 35% of the same amount.
A sum of 170% of the original contract amount! “Our joint and several liability amounted to 96,489 euros,” says Lode. “But because the painter 'only' had 64,212 euros in debt, we escaped that.”
Lode and Marleen were not immediately prepared to cough up this sum either. “I called about 10 lawyers,” says Lode. “The message was clear. It would be very difficult to get a compromise out of the fire. One lawyer advised me to visit the social security services on the spot. There I ended up with an attaché lawyer, who I was able to tell our story in a very humane way. We went over the situation together.”
In good faith
Lode and Marleen were lucky that they had concluded the building contract before the Royal Decree of 27 December 2007 came into effect. “As a result, the 56,758 euros of the contract amount, which was added to our joint and several liability, was lost,” says Lode. “In addition, I was able to negotiate that 50% of the deduction of 35% of the contract amount will also be waived. For this I had to draft a petition in which I clearly stated that we had acted in good faith and that we were completely unaware of the withholding obligation.”
The final bill for Lode and Marleen still consists of the supplement of 35% of the contract amount and half of the deduction: all together around 30,000 euros. “Once the first outstanding amount of 19,865 euros has been paid, we must again remind the RSZ of the 50% waiver on the remaining 19,865 euros by registered letter. But I have guarantees that it will be okay," explains Lode.
Lode and Marleen are unhappy about what happened to them. “This is pure Kafka, an absolute disgrace. No one ever informed us. Moreover, the approach of the RSZ is completely optional. Anyone who has failed to comply with the withholding obligation is jointly and severally liable. The RSZ can choose at will who it blames. One victim is of course much more practical for them. Outright discrimination!”
An inquiry with the RSZ shows that it indeed randomly selects a self-employed person who has called on a contractor with social debts to recover the arrears. “We first declare the contractor in default for his debts. If he cannot pay it, we will recover the debts from one of his customers. The RSZ determines on the basis of the circumstances which customer we will impose the fine on. In addition, the self-employed person must be aware of his duties. Various information sessions have been held at all kinds of trade unions about the withholding obligation. In addition, our website clearly explains what the withholding obligation entails. And the blacklist is indeed easy to find.”
Check here whether a contractor has debts.
*Lode and Marleen are fictitious names