Post by account_disabled on Mar 13, 2024 0:01:28 GMT -6
That the event generating the incidence of Personal Income Tax IRPF — and the social security contribution — would occur when the employee “exercises the right in relation to the shares granted to him” having as calculation basis “the difference between the market value on the date of effective exercise and the price at the time of exercise of the options” .
Carf justifies this position by understanding that the positive difference between the market value of the shares and the exercise price would constitute a profit — therefore attracting the incidence of article item II of the National Tax Code.
Although indirectly Carf ends up adopting the understanding that stock option plans would have a salary nature by ignoring the fact that the sharesquotas are purchased acquired at a CG Leads therefore by the beneficiary of the plan. In other words: there is necessarily a financial disbursement for the acquisition of shares which translates into a risk for the acquirer that his shareholding will depreciate in the future and instead of implying an increase in assets will cause him losses. Furthermore as previously mentioned the exercise of the purchase option is the right of the beneficiary of the stock options program to which membership is also voluntary who may give up the purchase of the shareholding when the requirements for the exercise of the right — without this generating any right to compensation or financial compensation.
These characteristics the risk to the beneficiary added to the onerous nature of acquiring quotas or shares and the voluntariness to exercise the right are typical of commercial contracts which demonstrates the inaccuracy of Carf's majority position.
In this sense the text of the Stock Options Legal Framework authored by senator Carlos Portinho expressly recognizes the commercial nature of the plan article sole paragraph and consequently establishes that the “gain earned by the option plan beneficiary will be subject to income tax at the time of sale of equity interests acquired as a result of the exercise of their respective option” article . The wording of PL nº supports several practices already disseminated by economic agents and can serve as guidance for the position of the Superior Court of Justice.
It is expected therefore that the STJ will honor the essentially commercial characteristics of the institute under penalty of reducing incentives for the use of stock option plans given the increase in the cost of the programs due to the incidence of tax labor and social security charges for companies and workers.
Carf justifies this position by understanding that the positive difference between the market value of the shares and the exercise price would constitute a profit — therefore attracting the incidence of article item II of the National Tax Code.
Although indirectly Carf ends up adopting the understanding that stock option plans would have a salary nature by ignoring the fact that the sharesquotas are purchased acquired at a CG Leads therefore by the beneficiary of the plan. In other words: there is necessarily a financial disbursement for the acquisition of shares which translates into a risk for the acquirer that his shareholding will depreciate in the future and instead of implying an increase in assets will cause him losses. Furthermore as previously mentioned the exercise of the purchase option is the right of the beneficiary of the stock options program to which membership is also voluntary who may give up the purchase of the shareholding when the requirements for the exercise of the right — without this generating any right to compensation or financial compensation.
These characteristics the risk to the beneficiary added to the onerous nature of acquiring quotas or shares and the voluntariness to exercise the right are typical of commercial contracts which demonstrates the inaccuracy of Carf's majority position.
In this sense the text of the Stock Options Legal Framework authored by senator Carlos Portinho expressly recognizes the commercial nature of the plan article sole paragraph and consequently establishes that the “gain earned by the option plan beneficiary will be subject to income tax at the time of sale of equity interests acquired as a result of the exercise of their respective option” article . The wording of PL nº supports several practices already disseminated by economic agents and can serve as guidance for the position of the Superior Court of Justice.
It is expected therefore that the STJ will honor the essentially commercial characteristics of the institute under penalty of reducing incentives for the use of stock option plans given the increase in the cost of the programs due to the incidence of tax labor and social security charges for companies and workers.