Entrepreneur Independence Test Under the Amendments to the Personal Income Tax Law

The law introduced a new taxation model for income earned by entrepreneurs and lump-sum entrepreneurs from a principal (client) where the entrepreneur is found to be non-independent in relation to that principal.

1. Persons subject to the independence test

The rules on the independence test are prescribed by Article 85, paragraph 1, item 17 of the Law and apply to:

• entrepreneurs who keep accounting books, and
• lump-sum taxed entrepreneurs.

If non-independence in relation to the principal is established, the income they earn is taxed as other income.

The following are not subject to the independence test:

• agricultural entrepreneurs,
• other self-employed individuals registered as VAT taxpayers but not registered with the Serbian Business Registers Agency (APR),
• legal entities, regardless of their legal form (for example, LLCs).

2. Who is considered the principal

The principal may be:

• a domestic or foreign legal entity,
• an entrepreneur, or
• a lump-sum entrepreneur,

that directly or indirectly engages the entrepreneur for the performance of work.

On the other hand, a person who is merely the direct payer of the fee to the entrepreneur, while making that payment in connection with agency or intermediary services for the account of another person, is not considered the principal. In such cases, the principal is the person for whose account the payment is made. This often occurs when entrepreneurs find work through global online work platforms such as Upwork or Freelancer.

3. Criteria for determining non-independence

Under the new Article 85, paragraph 1, item 17 of the Law, compensation paid to an entrepreneur who performs activities for consideration for the same principal, or for a person related to that principal under the Corporate Income Tax Law, is treated as other income if the entrepreneur additionally meets at least 5 out of 9 prescribed criteria.

In essence, the test examines whether the entrepreneur truly acts independently, or whether the relationship in practice resembles employment. Typical indicators include the principal determining working hours, place of work, the way work is performed, provision of equipment, training, reimbursement of costs, restrictions on working for others, and the proportion of income earned from one principal.

If at least five prescribed criteria are met, the relationship is treated as non-independent and the tax consequences are significantly different from standard entrepreneurial taxation.

Because the tax treatment depends on the overall factual relationship rather than only on the wording of the contract, each case should be reviewed individually.