Post by account_disabled on Mar 9, 2024 4:45:55 GMT
In the last week of the forensic case the Superior Court of Justice affected REsps nº SP and SP for judgment under the rite of repetitive appeals to “define the legal nature of the purchase option plans of company shares by executives stock option plan if linked to the employment contract remuneration or if strictly commercial to determine the applicable income tax rate as well as the moment in which the tax is applied” Theme .
Stock option plans are widely used tools for attracting and retaining talent as well as aligning interests by offering the possibility for certain employees employees directors advisory councilors service providers etc. to acquire shares or quotas in the company. company normally under different conditions and upon compliance with certain contractually established requirements.
Although Brazilian legislation addresses the issue B2B Email List in the Corporation Law article share purchase option plans are also used by startups . The lack of regulation PL No. which deals with the Legal Framework for Stock Options is currently awaiting analysis by the Chamber of Deputies ends up generating several doubts regarding the legal treatment of stock options in Brazilian law such as their legal nature whether salary or commercial and its taxation regime.
However curiously there is little controversy about the legal nature of stock option plans within the scope of the Labor Court. The Superior Labor Court has long recognized its commercial nature not salary:
The program through which the employer offers employees the right to purchase shares provided for in the Corporations Law n. art. does not provide the worker with a legal salary advantage. This is because although the possibility of carrying out the business buying and selling shares arises from the employment contract the worker may or may not earn a profit subjecting himself to variations in the stock market with the benefit having a commercial legal nature. The right therefore is not linked to the workforce it does not have a compensatory nature and it cannot be attributed a salary nature
It is also important to say that for the commercial nature of the benefit to be defined the following elements must be present: assumption of risk for the beneficiary who is subject to variations in the prices of quotas or shares; onerousness it is necessary to pay the stipulated price; and voluntariness adherence to the program must be freely undertaken by the beneficiary.
The origin of the controversies about the legal nature and consequent taxation of stock option plans arises then from the position of the Public Treasury which is also reflected in the understanding of the Administrative Council of Tax Appeals Carf on the matter.
Stock option plans are widely used tools for attracting and retaining talent as well as aligning interests by offering the possibility for certain employees employees directors advisory councilors service providers etc. to acquire shares or quotas in the company. company normally under different conditions and upon compliance with certain contractually established requirements.
Although Brazilian legislation addresses the issue B2B Email List in the Corporation Law article share purchase option plans are also used by startups . The lack of regulation PL No. which deals with the Legal Framework for Stock Options is currently awaiting analysis by the Chamber of Deputies ends up generating several doubts regarding the legal treatment of stock options in Brazilian law such as their legal nature whether salary or commercial and its taxation regime.
However curiously there is little controversy about the legal nature of stock option plans within the scope of the Labor Court. The Superior Labor Court has long recognized its commercial nature not salary:
The program through which the employer offers employees the right to purchase shares provided for in the Corporations Law n. art. does not provide the worker with a legal salary advantage. This is because although the possibility of carrying out the business buying and selling shares arises from the employment contract the worker may or may not earn a profit subjecting himself to variations in the stock market with the benefit having a commercial legal nature. The right therefore is not linked to the workforce it does not have a compensatory nature and it cannot be attributed a salary nature
It is also important to say that for the commercial nature of the benefit to be defined the following elements must be present: assumption of risk for the beneficiary who is subject to variations in the prices of quotas or shares; onerousness it is necessary to pay the stipulated price; and voluntariness adherence to the program must be freely undertaken by the beneficiary.
The origin of the controversies about the legal nature and consequent taxation of stock option plans arises then from the position of the Public Treasury which is also reflected in the understanding of the Administrative Council of Tax Appeals Carf on the matter.