On September 18, 2024, the Superior Court of Justice (STJ) published the ruling regarding cases REsp 2069644/SP and REsp 2074564/SP. Under the repetitive appeal regime, it was decided that Long-Term Incentive Plans through Stock Options have a commercial nature and, therefore, personal income tax (IRPF) does not apply to the acquisition of shares from the company that granted the purchase option.
The IRPF will only be applied when the beneficiary decides to sell these shares, provided there is a capital gain.
It is important to note that, for the purchase option to be considered of a commercial nature, there must be financial risk, meaning the acquisition of shares must occur through a purchase and sale transaction. If the shares are delivered free of charge, they may be classified as salary.
The rapporteur, Sérgio Kukina, emphasized that since the beneficiary must use their own capital to acquire the shares and there is no real economic or financial increase in wealth, the option to purchase the shares does not meet the definition of “income” for tax purposes, thus excluding the application of Article 43 of the National Tax Code (CTN).
As this ruling falls under the repetitive appeal regime, all similar cases must now be judged in accordance with the established thesis, ensuring greater speed, uniformity, and legal certainty regarding the taxation of Stock Options.
From now on, it is established that the purchase option of equity participation in these plans is not incorporated into the employment contract and does not constitute a basis for any labor, social security, or IRPF charges.
By Fabio Ramos Lacerda de Oliveira e Ana Cláudia Lechakoski
