Carf tem entendido que planos de stock options possuem natureza remuneratória

Carf tem entendido que planos de stock options possuem natureza remuneratória

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Por Cristiane Matsumoto Gago, Danielle Silva Smagasz e Fernanda Balieiro Figueiredo

Apesar da grande expansão dos planos de stock option no Brasil nos últimos anos, a falta de uma legislação específica sobre o assunto continua a suscitar dúvidas acerca da forma de tributação do imposto de renda e a necessidade de inclusão de um eventual ganho obtido no exercício da opção de compra dessas ações ou na sua respectiva venda na base de cálculo da contribuição previdenciária.

Enquanto para a Receita Federal, os planos devem ser considerados remuneratórios; para os contribuintes, os planos tem nítido têm caráter mercantil sem vinculação direta com a prestação de serviços, não devendo serem considerados como salário para fins de incidência da contribuição previdenciária.

Os contribuintes defendem que para a caracterização do aspecto mercantil alguns requisitos precisam ser atendidos: existência de risco de variação do preço da ação na venda, período de carência entre a aquisição e a venda da ação, a efetiva compra e desembolso de recursos próprios pelos empregados, voluntariedade por parte do empregado.

Como se sabe, essa discussão é um dos principais temas do Conselho Administrativo de Recursos Fiscais (Carf), que é o tribunal administrativo responsável pelo julgamento da validade dos autos de infração lavrados pela Receita Federal em 2º instância.

Durante o ano de 2016, o Carf proferiu algumas decisões a partir de análise específica de alguns Planos de Stock Option. Recentemente foram proferidos dois acórdãos pela 2ª Turma Ordinária da 4ª Câmara e pela 2ª Turma Ordinária da 2ª Câmara, ambas da 2ª Seção de Julgamento do Carf.

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Em ambas decisões (acórdãos 2402-005.346 e 2202-003.367), o Tribunal entendeu pela natureza remuneratória dos planos. De acordo com as decisões, os planos concedidos por empresas aos seus empregados se diferem da ações concedidas ao público em geral quando as ações são concedidas com preço subsidiado e estão vinculadas à permanência do empregado na empresa.

Outro ponto analisado pelo Tribunal Administrativo foi o condicionamento do plano ao cumprimento de metas de performance e redução de custos. Para o Tribunal, este ponto comprova a vinculação da concessão de ações à prestação de serviços dos participantes do plano.

Com relação à existência de risco para o participante, o acórdão 2202-003.367 trouxe uma nova argumentação. Nesta decisão, ficou consignado que só existe risco caso o participante pague “prêmio” pelo direito à outorga das ações. De acordo com o Relator, ao final do período de carência, o participante é capaz de comparar o preço de mercado da ação e o preço para pagamento determinado em contrato. Portanto, o participante é capaz de verificar vantagem antes do efetivo desembolso, descaracterizando o risco da operação.

Apesar do entendimento de que os planos têm natureza salarial, no acórdão 2202-0003.367, o Tribunal decidiu excluir a tributação sobre o Plano deStock Option por indicação incorreta da base de cálculo. Isso porque o auto de infração indicava que a base de cálculo seria o valor justo da ação no momento da outorga, ou seja, o valor da ação em mercado no momento de adesão ao plano de stock option. Para o Relator, a base de cálculo só pode ser apurada no momento do exercício da ação, em que se verifica a diferença entre o valor da ação na data do exercício e o valor pago pelo participante à empresa no mesmo momento.

Nesse contexto, embora o desfecho em cada processo dependa da situação específica de cada plano de opção de compra de ações, o contribuinte deve se atentar à motivação do pagamento, a existência de aquisição onerosa a preços não muito inferiores aos de mercado e a existência de metas para a concessão das ações. A atenção a estas características garantem aos planos maior chance de não serem considerados como remuneração para fins previdenciários.

Fonte: ConJur
Data: 07 de agosto de 2016
Acesso:  12 de agosto de 2016

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