Legal Certainty: STJ and TST Align Their Understanding on the Commercial Nature of Stock Option Plans

Segurança jurídica: STJ e TST alinham entendimento sobre a natureza mercantil dos planos de stock options

By a vote of 7 to 1, the 1st Panel of the Superior Court of Justice (STJ), in the recent ruling on Theme 1226, decided that stock option plans offered by companies to employees - stock options - do not have a remunerative nature.

In the judgment, under the repetitive appeals process (REsp 2.069.644 and REsp 2.074.564), the prevailing opinion of the Reporting Justice, Minister Sérgio Kukina, was that stock options have a commercial nature. As a result, individuals/employees should be taxed at the time of the sale of the shares, with income tax rates on capital gains ranging from 15% to 22.5%. In summary, the taxable event for Income Tax

The understanding now established by the STJ aligns with that crystallized before the Superior Labor Court (TST), which excludes the remunerative nature of stock option plans.

O entendimento ora fixado pelo STJ se coaduna com aquele cristalizado perante o Tribunal Superior do Trabalho (TST), que afasta a natureza remuneratória dos planos de stock options.

The absence of a remunerative nature means that the value of the shares is not subject to labor charges and benefits, such as the thirteenth salary, vacation pay, and FGTS, for example. Indeed, even if the granting of the stock option arises from the employment relationship, the employee’s gain will only occur if the shares appreciate in value, and thus, it cannot be considered as compensation for work.

The alignment of the two branches of the Judiciary creates an even more favorable environment for the implementation of stock option plans, not only in startups but also in various companies in Brazil.

Em breve síntese, a decisão traz segurança jurídica quanto ao tema, uma vez que vincula, inclusive, a posição do Conselho Administrativo de Recursos Fiscais (CARF), que não poderá proferir decisões divergentes da ora consolidada, garantindo aos empregados (contribuintes) e empregadores regras mais claras em relação aos efeitos fiscais e trabalhistas desse instituto.

CPDMA Team

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Legal Certainty: STJ and TST Align Their Understanding on the Commercial Nature of Stock Option Plans

By a vote of 7 to 1, the 1st Panel of the Superior Court of Justice (STJ), in the recent ruling on Theme 1226, decided that stock option plans offered by companies to employees - stock options - do not have a remunerative nature.

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