11/09/2024 – 20:18
The majority of the First Section of the Superior Court of Justice (STJ) understood that stock option plans, the so-called stock option plans, stock optionare not remunerative in nature, but rather commercial. The mechanism is usually offered to senior executives and leaders of publicly traded companies, who gain the option to buy shares at a pre-defined price, generally below the market price.
For the Court, the executive or employee will have an increase in assets only if and when he sells the shares for a higher price than he bought them. It is only at this time, then, that income tax (IR) should be levied, the judges determined.
The thesis was proposed by the rapporteur, Minister Sérgio Kukina. Minister Maria Thereza de Assis Moura disagreed, accepting the Treasury’s interpretation.
Lawyer Renato Silveira, partner at Machado Associados, explained to Broadcast that, if the income were considered remuneration for work, it would be subject to the progressive IR scale, with a rate of up to 27.5%. This was what the Tax Authorities intended.
On the other hand, with taxation only on the sale of shares, IR is levied as capital gains and has a maximum rate of 22.5%.
In the words of the rapporteur, when the executive acquires the shares at the promised price, he “does not experience an effective increase in equity”. Furthermore, there would be an implicit risk. Attorney José Eduardo Martins Cardoso, who represented one of the taxpayers, an employee of Qualicorp, cited price fluctuations and said that, “in a single day, Qualicorp lost 20% of the value of its shares”.
The National Treasury reported in the records that the internal system of the Office of the Attorney General of the National Treasury contained more than 500 cases on the subject. The issue was judged today as a repetitive appeal, which affects all similar cases in the courts.
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