At the STF, Fachin votes to maintain income tax exemption when purchasing shares via stock option

The president of the Federal Supreme Court (STF), Edson Fachin, voted against a government appeal that attempts to reverse a decision by the Superior Court of Justice (STJ) favorable to taxpayers on the taxation of stock option plans. The trial began on Friday, the 31st, and, so far, only Fachin has voted. The analysis should be completed next Monday, the 10th.

Stock option plans are usually offered to senior executives and leaders of public companies, who gain the option to buy shares at a pre-defined price, generally below the market price. Last year, the STJ removed the incidence of income tax (IR) on the purchase of shares through this mechanism. In his vote, Fachin considered that the discussion is infraconstitutional and, therefore, the last word has already been given by the STJ.

Broadcast (Grupo Estado’s real-time news system) showed in May that the Union was seeking to convince the Supreme Court to recognize the constitutional nature of the discussion and judge the case with general repercussions – which would affect all processes on the subject in court.

For the STJ, the purchase of shares via stock options is commercial in nature, not remunerative. The ministers understood that the executive or employee will only have an increase in assets if and when they sell the shares for a higher price than they purchased them. It is only at this moment – ​​that is, when the shares are sold – that IR should be applied.

In addition to the moment of collection, defining the legal nature of the stock option is also important to define the rate that applies to these values. If the income were considered remuneration for work, as advocated by the Union, the values ​​would be subject to the progressive income tax table, with a rate of up to 27.5%. With taxation only on the sale of shares, as decided by the STJ, IR is levied as a capital gain only when the shares are sold and has a rate of 15%.

For the Attorney General of the National Treasury (PGFN), the plan is actually equivalent to a salary because it constitutes an advantage for the worker, who will be able to sell the shares in the future at the market price and obtain a capital gain. Therefore, the Union understands that income tax must be charged at the time of acquisition of shares at a discount. They also argue that the mechanism generates executive engagement with the company, which would reinforce the remuneration nature.

The tendency in the Supreme Court, however, is for the Union’s claim to be denied. In 2023, the Court already decided that the discussion about the legal nature of the stock option is infraconstitutional, that is, the final word would belong to the STJ. At the time, the decision was taken unanimously.

The Treasury reported in the case files at the STJ that there were more than 500 actions on the subject in the PGFN system. The stock option thesis also entered the Integral Transaction Program (PTI), launched in 2024 by the PGFN to resolve tax disputes with high economic impact. There has been a tax transaction notice open since September for taxpayers who wish to enter into an agreement with the Union and end the judicialization.