The 1st Section of the Superior Court of Justice (STJ) ruled thatstock option plans offered by companies are not part of employees' remuneration and, therefore, personal income tax (IRPF) would only be levied when the shares are sold with a capital gain (i.e. sale for more than the purchase price).
Unlike the thesis defended by the tax authorities, the STJ held that the contracts are of a commercial nature, since the beneficiary of the SOP acquires the shares at a certain price and assumes the risk of fluctuations in the value of the shares. If this is not the case, the IRPF cannot be levied when the shares are acquired, but only when they are sold with a capital gain, which involves lower rates.
Although it is a favorable and significant precedent for the industry, the STJ decision took into account a stock option plan that clearly had commercial characteristics.
In this sense, it is essential to exercise caution when drawing up stock option plans in order to avoid them being characterized as remunerative in nature.
The Corporate team at Barcellos Tucunduva Advogados is available to answer any questions on the above subject, by e-mail: societario@btlaw.com.br.