On September 11, the Superior Court of Justice (STJ) ruled, by a wide majority (7×1), that stock option plans offered by companies to their employees as a form of stock purchase option have a commercial, not remunerative, nature. The decision was made during the judgment of Special Appeals (REsp) 2069644/SP and 2074564/SP, under the repetitive appeals system, establishing a mandatory precedent for other courts, except for the Supreme Federal Court (STF).
The STJ’s consolidated understanding is that taxation occurs only at the time of the sale of the shares, with capital gains tax rates ranging from 15% to 22.5%, and not at the time of the grant or exercise of the purchase option.
The main point of divergence among the justices was the nature of the stock option plan. The Attorney General’s Office of the National Treasury (PGFN) argued for the remunerative nature of these plans, claiming that the grant of the shares occurs as compensation for the work performed, thus making them taxable both at the time of the grant and at the time of the sale.
On the other hand, Justice Sérgio Kukina and the majority of the justices held that, as a commercial contract, the triggering event for personal income tax (IRPF) only occurs at the time of the sale of the shares, when there is an actual capital gain. This understanding is in line with established jurisprudence from labor courts, which had already recognized the commercial nature of stock option plans.
Although the STJ’s decision focuses on the taxation of individuals, it is also relevant for companies, as they are responsible for withholding income tax (IRRF). Cases of improper or insufficient taxation may result in fines and weaken the purpose of stock option plans, which is to engage and motivate employees.
This decision represents a significant victory for taxpayers, as it consolidates a clearer and more secure understanding of the taxation of stock option plans in Brazil, aligning with the expectations of the capital markets and providing greater legal certainty for the business sector.