Founders of startups have been offering the so-called stock option plans (Stock Option Plans or “SOPs”) to promote and retain their employees. After a set period of time, they can buy shares in the company, often for a pre-fixed price that is lower than the market price.
There plans that require the employee to remain in the company for a certain period of time in order to acquire the shares; others require the employee to be working in the company at the time of the share purchase and sale exercise, among other conditions defined by the parties.
In practice, among the possible advantages of these plans is the fact that the company wins by encouraging the search for high performance/result, keeping the talents enthusiastic about their routine, and, on the other hand, the beneficiaries win by enjoying the considerable financial return resulting from the very performance/result they helped to build, and by the competitive advantage in relation to the stock price in the market.
In Brazil, the possibility of creating Stock Option Plans is foreseen in Article 168, §3 of the Brazilian Corporations Law (6.404/76) and it is allowed as long as the transaction complies with the limit of the authorized capital and in accordance with the plan previously approved by the General Assembly.
In spite of the fact that there is legal provision for its creation, the subject lacks regulation, precedents regarding its nature (remuneration or commercial) and assessment rules.
While the Federal Revenue of Brazil defends the Stock Option Plans’ remuneration nature, treating them as salary and subject, therefore, to the social security and labor contributions and to the Individual Income Tax – IRPF, the Labor Justice has already manifested several times by its eminently mercantile nature, subject only to the income tax on eventual capital gain calculated on the sale of the shares, not applying the labor fees (13th salary, vacation, FGTS etc.).
The vast majority of judicial and administrative precedents refers to Stock Option Plans implemented by publicly traded companies, whose shares usually enjoy great liquidity, unlike what happens with startups, where the opportunities for liquidity are much lower and the risks of business failure much higher, favoring, in principle, its commercial nature.
Given the lack of regulation or, at least, harmonization between the understandings of the decision-making institutions, some aspects must be considered to characterize the tax nature of the Stock Option Plans, such as (i) onerosity (the lower the difference between the exercise price and the market price of the shares on the grant date, the lower the tax risk), (ii) market risk, and (iii) voluntariness (optional adhesion to the plan).
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