Gerechtshof 's-Hertogenbosch, 05-07-2023, ECLI:NL:GHSHE:2023:2201, 22/00418

De wielerovereenkomst heeft betrekking op afspraken rondom de deelname van belanghebbende aan mountainbikewedstrijden voor het [GmbH] team. Hierin is het volgende overeengekomen, voor zover hier van belang:

Ҥ 1 Assignment of the Cyclist

The Cyclist undertakes to be available as racing cyclist / cyclist for sporting mountain bike elite races and /or other cycling events for [GmbH] during the term of this contract.

§2 Duration of the agreement / extraordinary termination

(…)

3. Both parties reserve the right to give notice of termination for an important reason.

An important reason which entitles to an extraordinary termination exists in particular if:

- (…)

- the Cyclist, in particular owing to injury, longer illness, an accident or other reasons is permanently prevented from satisfying his obligations under this contract before expiry of this agreement.

- judicial insolvency proceedings are initiated over the assets of one contractual party or if judicial insolvency proceedings are about to be initiated, whereby the rejection of the insolvency proceedings owing to return unsatisfied is deemed equivalent to the initiation of insolvency proceedings.

- the Cyclist does not further develop the activities/services for which he is responsible from this agreement or another contractual regulation between [GmbH] and the Cyclist based on his own free will (this reason will allow [GmbH] to give notice of termination only);

- the head — or main sponsor of the team withdraws its engagement no matter for what reasons and [GmbH] thereby loses the main source of income, i.e., if an adequate substitute financier cannot be found directly either. This reason only will allow [GmbH] to give notice of termination.

§3 Option / extension of the agreement

[GmbH] is entitled to extend this agreement one-time for a further year at the same conditions through a unilateral written declaration, a maximum however for the same term. The declaration must be received by the Cyclist by no later than two months before termination of the contract. Subsequently — for the following years — the contract is extended automatically by respectively one further year if it is not terminated by one of the parties in writing before 30.09. of the previous year.

(…)

§ 4 Capacity as entrepreneur and taxation

1. The Cyclist is a freelance employee of [GmbH] .

2. He undertakes to provide the proof of entry as an entrepreneur who is liable to tax (…) by his responsible Inland Revenue Office towards [GmbH] as well as to submit a certificate of residence. The Cyclist shall inform [GmbH] of a change in the place of residence immediately and submit a new certificate of residence.

3. As the Cyclist is not an entrepreneur based in the domestic country withholding tax on income will be retained from the remuneration of the Cyclist with regard to the income which is to be taxed in Germany in line with the statutory regulations.

4. The Cyclist undertakes to independently ensure the remittance of the income relating to him as well as if applicable value added tax.

5. Should the agreement concluded with the Cyclist, contrary to the expectations, be seen as a dependent employment relationship, thus liable to income tax/social insurances by the responsible Inland Revenue Office (…) then the Cyclist indemnifies [GmbH] from all claims, which are asserted against [GmbH] by the Inland Revenue Office (…) from this contract. The Cyclist, as self-employed person must bear the respective effects at his own responsibility. In this case, the Cyclist's remuneration will take account of the change in circumstances or will be subsequently recalculated as appropriate; this is understood to mean that in such a case [GmbH] will not be charged higher costs than agreed under this contract.

§ 5 Remuneration

1. As remuneration for the achieved sporting performances the Cyclist shall receive

in the year 2013 a flat rate amount of (…) minus possible withholding tax on income which is to be paid by [GmbH] (…) to be paid out in monthly instalments (…) at the respective end of the month.

in the year 2014 a flat rate amount of (…) minus possible withholding tax on income which is to be paid by [GmbH] (…) to be paid out in monthly instalments (…) at the respective end of the month.

The prerequisite for the payment of the monthly instalment is that the Cyclist ranks among the Top 30 of the UCI world ranking list on all days in the month of the payment. If the Cyclist leaves the Top 30 on even just one day of the month the monthly instalment is reduced by 25 %. The annual flat rate is reduced hereby accordingly.

[GmbH] shall also be entitled to reduce the monthly instalment by 25 % if the sporting performances of the Cyclist are not sufficient owing to circumstances for which he is responsible, in particular owing to insufficient training.

Insofar as the term of this agreement, no matter for what reasons, does not comprise a whole calendar year, the annual flat rate shall be reduced pro rata.

2 . In addition, the Cyclist receives success-based bonuses according to the team bonus list which is enclosed with this agreement as Annex 2. (…). The maximum bonus amount per annum is limited as follows:

A maximum bonus amount of € 20.000,- (…) can be achieved in the year 2013, and € 20.000,- (…) in the year 2014.

(…)

4. Each month from January to December of each calendar year 20 % shall be deducted from the monthly instalments and retained as advance payment for the withholding tax on income which is to be paid by the racing team. (…)

§ 6 Travelling expenses, accommodation and meals

1. [GmbH] assumes the costs for the accommodation and meals for the racing cyclists, insofar as the cyclist takes part in races for [GmbH] and the aforementioned costs are not borne by the national federations. [GmbH] is entitled to stipulate a team meeting point to participate in races to which the Cyclist will travel at his own costs.

2. Possible necessary licenses and starting fees shall be borne by the Cyclist.

§ 7 Obligations of the Cyclist

1. Through this contract the Cyclist is obliged to be available to [GmbH] for assignment as a cyclist for mountain bike races and /or other cycling events during the contractual term. He owes hereby participation with the best possible effort. He shall in particular make every effort to win competitions.

The Cyclist is entitled to also take part in other cycling events as racing cyclist /cyclist besides his obligations for [GmbH] insofar as these do not clash in terms of time compared with the obligations towards [GmbH] .

2. The Cyclist acknowledges the statutes and the regulations of the [GmbH] team in their respective valid version as binding for him. The currently applicable assignment plans, sporting -programmes and regulations, team statutes, etc. are enclosed with this contract as Set of Annexes 3. The Cyclist has no entitlement to participate in certain events.

3. The cyclist undertakes to show fair sporting conduct, in particular to comply with all regulations of the mountain bike racing sport. (…).

The Cyclist undertakes to comply with the regulations of the Federations UCI and BDR or other national and international federations and here in particular to comply with the respective actual regulations concerning doping concerning to WADA.

4. The Cyclist hereby accepts an absolute ban on doping. (…). The ban on doping also includes for example insulin doping and GEN doping. The Cyclist undertakes to take part in the doping controls ordered by a federation (…) WADA/NADA and/or a promoter and/or [GmbH] .

5. With this contract the Cyclist undertakes at the same time to sign the contract also submitted by [GmbH] for regulating the assumption of sponsor obligations and the assignment/exploitation of personal rights.

6. The Cyclist is responsible fort he psychological and medical supervision of the Cyclist at own costs. The Cyclist shall regularly send [GmbH] — without request — information about performance tests planned by the Cyclist during the season. The same shall apply to the results of conducted performance tests.

7. Upon request of [GmbH] the Cyclist shall have his blood checked and inform [GmbH] without request of the blood values/blood counts, which were determined from the examination.

8. The Cyclist shall send [GmbH] without request information about non-announced doping controls, which were carried out by the WADA/NADA or the federation.

9. The Cyclist shall inform [GmbH] without request about his health certificate or submit this to [GmbH] . The Cyclist shall inform [GmbH] without request about the application for a health certificate. The same applies to the permitted intake of medication, which are on the list.

10. The Cyclist undertakes to comply with the reporting duty "where abouts" to NADA. The Cyclist shall inform [GmbH] without request about a "missed test".

11. The Cyclist undertakes to also not consume any drugs and/or excess alcohol whatsoever outside of sports events.”

Ҥ1 Object of contract

1. Under this contract the Cyclist assigns to an unlimited extent and exclusively the worldwide exploitation of his personal rights and his rights to his own image to [GmbH] for the marketing to promote his image for [GmbH] , its sponsors and of the Cyclist himself.

Included hereby are all rights to the reproduction, publication and marketing of all actually known and future media. [GmbH] is permitted to grant sub-licences as well as to assign its granted rights to third parties. The consent of the Cyclist is not necessary in this respect. Specifically the Cyclist assigns to this end the rights to [GmbH] , which are necessary for achieving the aim of the contract, in particular, however not conclusively

- the right to the name, form, photographic image, moving image, signature and voice, sporting successes and biographical information of the Cyclist, including all reproductions or imitations of the aforementioned features

- the right to use the personality for existing and future appearances, also within the framework of all advertising, in all media, in particular TV, radio, editorial advertising, advertisements, Internet, social media, mobile radio advertising, outdoor advertising, editorials, interviews, promotions, posters, corporate and product PR, merchandising articles as well as in combination with sales-promotion measures (POS)

- the right to equip the Cyclist (incl. racing machine/MTBike) as well as the right to equip the Cyclist with leisure clothing insofar as the Cyclist appears in public as a member of the Multivan [GmbH] Biking Team.

[GmbH] is also granted in particular the right, without a separate consent of the Cyclist, to oblige other co-, main and secondary sponsors besides the head sponsor.

2. The Cyclist is responsible for ensuring that he may dispose freely over the rights mentioned above in Par. 1 and in particular has not entered into any opposing obligations with third parties.

(…)

§2 Duties and return service of the Cyclist

I. Duties of the Cyclist

1. Through this contract the Cyclist is obliged to be available for [GmbH] for all sporting mountain bike elite races named by the team and events to promote communication of all kinds during the contractual term insofar as this is permitted by his sporting or health efficiency. The Cyclist shall in this respect make his full sporting performance available to the team. He owes hereby his participation with the best possible effort. He shall in particular make every effort to win competitions.

2. The Cyclist moreover hereby acknowledges the statutes and the regulations of the [GmbH] team in their respective valid version as binding for him. He hereby subjects himself to the authorisation of the team as employer. The currently applicable assignment plans, dates were presence is required, sporting programmes and regulations, team statutes, etc. are enclosed with this contract as Set of Annexes 1. The Cyclist accordingly has no entitlement to participate in certain events.

3. The Cyclist undertakes to show fair sporting conduct, in particular to comply with all regulations of the mountain bike racing sport. (…) The Cyclist further undertakes to comply with the regulations of the federations UCI and BDR or other national federations and here in particular to comply with the respective actual regulations concerning doping, in particular also the WADA/NADA. The Cyclist hereby accepts an absolute ban on doping. (…) The Cyclist hereby voluntary subjects himself to the doping controls ordered by the federation and/or the team. If a decision is made by [GmbH] notwithstanding this not to register the Cyclist for a race, (…) the Cyclist must accept this without compensation. The same applies to corresponding measures if the Cyclist e.g. is responsible for improper use with regard to his health certificate and/or other practices are known to him which should serve to circumvent the anti-doping regulations or are suitable for concealing the intake of banned substances. Further the cyclist is obliged to take part in the national ADAMS-System ("Whereabouts") according to WADA-Regulations.

4. The Cyclist undertakes to use the bicycles and provided items of clothing and other materials of [GmbH] or the sponsors in all cycling sport events, in which he takes part (competitions, training events, etc.) as well as in the training and in private sports activities. The Cyclist shall ensure that the relevant logos, emblems and other advertising statements are always as far as possible clearly visible and worn and presented to provide the optimum advertising effect; this applies in particular also to the presentations of [GmbH] and the team sponsors, which are also insofar to be included on the personal/private homepage of the Cyclist.

II. Return service of the Cyclist

1. The Cyclist shall receive the fee regulated under § 3 from [GmbH] if he in return permits the use of his name and the right to the own image for the comprehensive and exclusive use in the communication work, in particular for the use on the own homepage, in reference lists, etc., and satisfies his obligations under this contract (…)

The Cyclist undertakes to always communicate [GmbH] and the sponsors positively in all public appearances, albeit for private or professional reasons, above all in all appearances in the media within the framework of that which is possible and reasonable for him. The Cyclist particularly undertakes to promote the image of [GmbH] and the sponsors.

2. The Cyclist undertakes to coordinate other advertising activities for the benefit of third parties previously with [GmbH] and to obtain its written consent. [GmbH] shall approve these advertising activities if the sponsors of [GmbH] approve these activities on their part unless the interests of [GmbH] or its sponsors which are worthy of protection are impaired hereby. This shall also apply to the gloves, shoes and socks of the Cyclist, with regard to which the Cyclist incidentally acts autonomously in his obligation towards sponsors.In addition, the Cyclist undertakes not to promote interests of competitors of [GmbH] or its sponsors in any other manner— not even indirectly— during the term of the contract unless this is unavoidable for him. (…) The Cyclist is additionally granted the right, which can be revoked at all times, to include 2 (two) personal sponsors on the team jersey (…) insofar as this does not conflict with the UCI regulations for national champion jerseys and world champion jerseys (…) and the existing team sponsors and/or those conducting negotiations with [GmbH] and [GmbH] has previously approved the relevant sponsor and the concrete imprint in writing. Referring to this, it has to be set clear, that personal Sponsors of the Cyclist are not allowed on World Champion Jerseys in general. In addition the Cyclist undertakes, before entering into a contract with a personal sponsor, to give [GmbH] the opportunity to name an alternative sponsor at the corresponding conditions —within 4 weeks from the written notification -, who then should enjoy a pre-emptive right for the conclusion. Team sponsors principally have exclusive priority on national champion jerseys and world champion jerseys.

3. The contractual parties undertake to show each other mutual respect, well-being and loyalty, this shall also apply with regard to the sponsors of [GmbH] . The Cyclist shall in particular not make a negative statement in public about [GmbH] or the sponsors, their products and/or services. (….)

4. Each contractual party shall inform the other party immediately about all circumstances, which could be of significance for the execution of this contract. Measures with a publicity effect are if possible to be coordinated with the other contractual party in advance.

5. The contractual parties undertake to treat the contents of this contract, in particular the services owed hereby, confidentially towards third parties. (…).

6. The Cyclist shall use the items of equipment/materials made available to him by [GmbH] or the sponsors exclusively for the aims stated in the preamble and this contract and account to [GmbH] in this respect after termination of the contract. (…)

§ 3 Duties of [GmbH] , remuneration of the Cyclist

1. [GmbH] undertakes to provide or make available to the Cyclist the team-own equipment for use free of charge for the duration of the contractual term. The use by the Cyclist is only permitted by complying with the regulations for use. (…)

2. [GmbH] undertakes to make the customary team sports clothing as well as per season 2x MT6, 2 x Cyclo Cross, 1x road racing bicycle (by agreement) available to the Cyclist for the competition and training use, free of charge; this equipment which is to be provided by the team bears the name and logo of the team. (…) These materials shall remain the property of [GmbH] and are respectively to be returned without request to [GmbH] at the end of the season — with the exception of the sports clothing.

3. As consideration for the assignment of the personal rights and rights to image as well as to his advertising activity for the sponsors of the [GmbH] team, consequently for the handing over of his rights as stated in this contract collectively referred to as rights to image the Cyclist shall receive

in year 2013

a fixed fee (…) , less any withholding tax on income that is to be paid by [GmbH] in Germany ( 15,825%), to be paid out in monthly instalments (…).

in year 2014

a fixed fee (…) less any withholding tax on income that is to be paid by [GmbH] in Germany ( 15,825%), to be paid out in monthly instalments (…).

The monthly instalments shall be paid out at the respective end of the month. (…)

(…)

6. [GmbH] is entitled to reasonable reduce the aforementioned fee if the sporting and/or

advertising or communicative performances of the Cyclist are not appropriate for circumstances for which he is responsible, in particular owing to insufficient availability and/or insufficient training, by taking into account the joint plans and/or the Cyclist is not available as a result of illness/inability to take part in competitions for longer than 6 months. This shall also apply if the performance of the Cyclist, which can reasonably be expected according to the previous performance is not achieved during the contractual term.

The prerequisite for a full entitlement to the fees from this contract is that the Cyclist ranked among the Top 30 of the UCI-world ranking list on all days of a month for which an instalment of the fee is paid. If the Cyclist is officially listed there with a lower rank on even just one day of the relevant month the fee entitlement shall be reduced on the whole to the extent that the amount paid is reduced by 25% for each relevant month if the deterioration in rank is not concretely and as proven due to an injury, incurred when racing or training.

§ 4 Personal service

The Cyclist is only entitled and obliged to personally perform a service. The full or partial performance of a service — in particular with regard to the public relations work — by other persons than those stated or by third party vicarious agents is only permitted with the prior written consent of [GmbH] .

The receivables and other claims under this contract are not transferrable.

(…) ”

Belanghebbende heeft aangifte IB/PVV 2015 gedaan naar een belastbaar inkomen uit werk en woning van € 32.197. Hij heeft € 45.678 aan winst uit onderneming aangegeven en heeft in zijn aangifte verzocht om aftrek elders belast naar een bedrag van € 31.045. Belanghebbende heeft een bedrag van € 21.794 aan kosten in aftrek gebracht. Dit bedrag bestaat uit:

Inkopen fietsen en onderdelen € 2.911

Kosten i.v.m. dagen buitenland 51/360 x € 70.400 € 9.973

Kantoorkosten € 1.173

Autokosten € 2.500

Algemene kosten € 5.237

€ 21.794

Het resultaat uit overige werkzaamheden is als volgt berekend:

Inkomsten € 11.948

Af: kosten

Inkopen fietsen en onderdelen € 2.911

Pro rata aandeel overige kosten € 1.248

€ 4.159

Totaal € 7.789

De inspecteur heeft rekening gehouden met een aftrek elders belast van 50/303*€ 73.400= € 12.112. De aftrek elders belast is niet in geschil. Tevens is bij beschikking € 1.357 belastingrente in rekening gebracht. De inspecteur heeft de aanslag en de rentebeschikking bij uitspraak op bezwaar gehandhaafd.