Frustrating expectations of a judgment that was expected to represent one of the first positions of the STJ on stock options, the National Treasury Attorney’s Office (PGFN) has withdrawn its appeal, giving the taxpayer victory in the case.

The discussion with the Federal Revenue involves the nature of these programs. According to the taxpayers, the operation would be of a commercial nature (contractual), in which case Income Tax would be levied only on the capital gain resulting from the difference between the acquisition and sale value of the share acquired in the plan, at a rate of 15% in most cases.

For the Tax Authorities, on the other hand, the nature of the plan would be of a salary, which triggers the social security contribution, payable by the companies, to be levied in addition to income tax. Furthermore, workers would have to pay income tax on both the exercise of the stock option (at a rate of 27.5%) and on the sale of the stock (capital gain – at a rate of 15%).

In the administrative scope of the CARF judgments, the Federal Revenue’s understanding has still been prevailing, leading the taxpayers, for the most part, to discuss the controversy in the judicial courts, where the decisions are usually more favorable to the understanding of the levy of tax only on the capital gain, due at the time of the sale of the share.

This trend was confirmed in this case in the Superior Court of Justice (RESP no. 1737555), in which the PGFN opted to withdraw its appeal, guaranteeing the taxpayer the cancellation of the tax collection demanded by the federal revenue.