Archive for month: June, 2025

Every month, the TM Associados team brings a newsletter with essential topics for the success of your business. We address in a practical and objective way the main highlights in Advisory, Litigation, Labor and Tax, helping you to make safer and more strategic decisions. Don’t miss this opportunity to turn information into competitive advantage! 📩

Advisory

STJ Defines Commercial Nature of Stock Option Plans and Establishes Taxation Only Upon Resale of Shares

The First Panel of the Superior Court of Justice (STJ), when judging Topic 1.226 under the repetitive appeals system, recognized the commercial nature of stock option plans (SOP) and ruled that Personal Income Tax (IRPF) is only applicable when the beneficiary resells the shares with a capital gain.

Understanding the Case

In case REsp 2.069.644, the National Treasury argued that SOPs constitute a form of remuneration linked to the employment contract, requiring withholding tax both at the time of granting options and upon acquisition of the shares. The STJ, by majority, rejected this thesis: mere acquisition, even at a price below market value, does not generate an increase in wealth. The taxable event for IRPF occurs only upon the subsequent sale of the shares, when a profit is actually realized.

The Judicial Decision: Reinforcing the Distinction Between Income and Capital Gain

According to the reporting judge, Minister Sérgio Kukina, “the SOP constitutes a commercial transaction of buying and selling shares; IRPF is only levied when the capital gain is realized upon resale.” Thus, the court established two binding theses:

• IRPF does not apply at the time of share acquisition because there is no income or wealth increase;
• IRPF does apply as capital gain when the beneficiary resells the shares at a profit.

Implications for Remuneration and Taxation Plans

• Companies offering SOPs must review internal documents and accounting policies to reflect the commercial nature of the benefit;
• Taxation now focuses on the capital gain obtained by the beneficiary, requiring control over acquisition costs and sale prices;
• As a rule, withholding by the company is no longer required, reducing the risk of assessments due to misclassification as salary compensation;
• Existing plans that included early withholding may require contractual amendments or operational restructuring.

How TM Associados Can Help

Our legal advisory and tax teams can support your company in:

• Reviewing and adapting SOP regulations in line with the new court ruling;
• Structuring tax compliance models and acquisition cost records;
• Guiding beneficiaries on calculating capital gains and fulfilling related obligations;
• Mitigating labor and social security risks in equity-based incentive programs;
• Mapping the impact on corporate reorganizations, mergers, and acquisitions involving executives with SOPs.

The consolidation of best practices in long-term incentives strengthens talent retention and minimizes tax contingencies. Count on TM Associados to ensure compliance and tax efficiency in your stock option plans.

TRT-6 Establishes Binding Precedents on the Liability of Executives in Labor Enforcement Against Corporations

The Regional Labor Court of the 6th Region (Pernambuco) concluded the judgment of the Incident of Resolution of Repetitive Demands (IRDR) no. 0001046-94.2024.5.06.0000 (Topic 09) and established a binding precedent that, in labor enforcement against corporations, the “Lesser Theory” (Teoria Menor) of piercing the corporate veil applies. The ruling also clarified when enforcement can be redirected to shareholders, officers, and statutory directors.

Understanding the Case

The IRDR was filed to harmonize conflicting rulings on the scope of patrimonial liability in labor enforcements involving corporations. The central issues were:
(i) which theory of piercing the corporate veil should be applied (Lesser or Greater), and
(ii) in which cases the enforcement could reach corporate executives and shareholders.

The Established Theses: Strengthening Protection of Labor Creditors

The Court en banc set forth the following binding legal theses (per article 985 of the CPC):

• Lesser Theory: proof of insufficient assets of the legal entity is sufficient to reach the assets of statutory directors and, when applicable, controlling shareholders who exercise management powers;
• Statutory directors and officers: may have their assets seized if their term overlaps with the creditor’s employment relationship.
  If there is no overlap, redirection requires proof of complicity, negligence, or omission (per §1 of article 158 of Law 6.404/1976);
• Controlling shareholders of publicly held companies and all shareholders of privately held companies are also subject to enforcement, depending on their level of managerial control.

Scope of the Precedent

This decision is binding only on Labor Courts in Pernambuco and the TRT-6 itself (per article 986 of the CPC).

While it does not bind other Regional Labor Courts or the Superior Labor Court (TST), the precedent has persuasive value and reinforces a growing trend of expanding the personal liability of executives in labor enforcement actions. Other courts may adopt a similar position, and companies should closely monitor jurisprudential developments.

Practical Implications for Companies and Executives

• Governance and compliance: Boards and management should strengthen internal controls, document decisions, and adopt policies for mapping labor liabilities to reduce exposure to claims of negligence or misconduct;
• D&O Insurance: The expanded risk of personal liability suggests reviewing director and officer insurance policies, especially limits and retroactivity clauses;
• Due diligence and M&A: Corporate acquisitions should include a detailed review of labor proceedings and executive tenures to assess potential contingencies;
• Corporate structure: Controlling shareholders should consider implementing asset segregation mechanisms and clearly defining management powers, especially in privately held companies.

How TM Associados Can Help

Our legal advisory and labor teams are ready to:

• Review corporate bylaws and board minutes to incorporate governance best practices and limit personal liability;
• Design labor compliance policies and train executives on required diligence;
• Negotiate or adjust D&O policies in light of new case law;
• Conduct due diligence in M&A transactions, quantifying risks arising from IRDR-related contingencies;
• Represent companies and executives in piercing-the-veil proceedings, defense strategies, and judicial settlements.

Although the TRT-6 decision is only binding in Pernambuco, it signals a judicial trend likely to spread to other jurisdictions. Companies and executives must therefore reinforce labor liability management and ensure traceability of corporate decisions. TM Associados can help map risks, review governance structures, and provide representation in veil-piercing cases, staying ahead of this growing trend in Brazilian labor courts.

Litigation

Marital Property Regimes and Inalienability Clauses: Where Do Companies Go Wrong the Most?

What starts in marriage may end up in court—and involve your company.

In the business world, it is common for partners to focus on corporate structure, governance, and growth strategies. But a detail often goes unnoticed: the marital and family life of partners can directly impact the asset security of the company.

The marital property regime chosen at marriage or poorly drafted clauses in donations and family partitions can lead to serious corporate conflicts, hinder business, and even compromise the continuity of the company.

Marital Property Regime: An Overlooked Legal Risk

The marital property regime determines how the spouses’ assets will be divided in case of separation or death. For companies, this choice can have practical and financial consequences.

See the effects of each regime:

• Partial community property: shares acquired during marriage may be subject to division, even if the company is registered solely in the name of one spouse initially.
• Universal community property: all assets, including shares acquired before the marriage, may be divided.
• Full separation of property: ensures that each spouse’s assets remain individual, offering greater protection to the company.

Common mistake: a partner gets married under the partial community regime, assumes the shares are “his,” and finds out during divorce that half may belong to the ex-spouse—resulting in legal disputes and instability within the company.

Inalienability Clauses: Poorly Applied Protection Becomes an Obstacle

It is common to include inalienability, non-attachment, and non-commingling clauses in donations and partitions to protect assets. However, when poorly drafted or used indiscriminately, these clauses:

• Prevent heirs or partners from negotiating their shares;
• Complicate corporate restructurings or the entry of new investors;
• Hinder strategic operations due to excessive legal restrictions;
• Cause legal uncertainty and prolonged family disputes.

Practical consequence: an heir receives shares with an inalienability clause. Years later, the company needs to reorganize. But he cannot transfer, sell, or use them as collateral—paralyzing the operation.

Main Mistakes Made by Companies and Business Families

• Misalignment between the marital property regime and the company’s bylaws;
• Lack of shareholders’ agreement with succession and third-party entry clauses;
• Generic and standardized use of inalienability clauses;
• Absence of structured succession planning;
• Unawareness of the impacts of marriage or stable unions on the corporate structure.

Strategic Solutions to Avoid Conflicts

• Formalize robust shareholders’ agreements: including rules on succession, share sale, and exclusion of spouses.
• Plan the marital regime with legal guidance: for current and future partners.
• Use asset-related clauses with technical precision and customization: in donations, wills, and contracts.
• Create structures such as family holdings: to professionalize management and protect assets.
• Periodically update corporate documents: based on family or asset changes.

Do Not Underestimate Family Risks in the Business World

The overlap between family and business is inevitable in many ventures—but the risks can (and should) be controlled. With proper legal planning and guidance, it is possible to protect corporate assets and preserve family relationships.

How Can We Help Your Company?

We specialize in corporate, family, and succession law, with a focus on estate planning and protection of corporate structures.

Schedule a strategic consultation!

Labor

Outsourcing Through Legal Entities (“Pejotization”): STF Reviews Fraudulent Hiring and Defines Limits Between Outsourcing and Employment Relationship

In 2025, the Brazilian Federal Supreme Court (STF) began hearing General Repercussion Topic 1,389, which addresses the legality of hiring workers through legal entities (known as “pejotization”) when typical elements of an employment relationship are present. The case has significant impacts on the productive sector, especially in industries that use more flexible hiring models.

In recent years, pejotization has become a common practice in fields such as technology, healthcare, education, and media. Initially designed for autonomous and occasional services, the model began being used as an alternative to formal hiring under the Consolidated Labor Laws (CLT). However, this practice has been judicially challenged as a way to circumvent essential labor rights.

The STF’s review focuses on a key question: Is it legitimate to contract through a legal entity when, in practice, the service is rendered habitually, under subordination, personally, and with compensation? For the Reporting Justice Alexandre, hiring through a legal entity is valid as long as the defining elements of an employment relationship are not present. In recent opinions, he has emphasized that a contractual arrangement between companies does not automatically constitute an employment relationship; it is essential to examine whether subordination, personal execution, habituality, and compensation exist in practice.

This interpretation reinforces Article 9 of the CLT, which nullifies acts aimed at distorting, preventing, or defrauding the application of labor laws.

A binding precedent from the STF could reshape current jurisprudence, requiring companies to restructure their service provider hiring policies to avoid labor liabilities and charges of employment fraud.

Given the issue’s national relevance, the STF has ordered the suspension of all ongoing cases in Brazil concerning the validity of hiring legal entities in situations that may configure an employment relationship. The suspension will remain in place until the final judgment of Topic 1,389, which will set a binding precedent for all courts. As a result, thousands of labor lawsuits are currently on hold, raising expectations among both companies and workers.

Additionally, this issue is part of a broader debate on the role of subordination in the digital era, especially with the rise of platform-based work, freelancers, and full-time independent professionals.

Conclusion

The STF’s ruling on Topic 1,389 may become a landmark in defining what truly constitutes an employment relationship.

If PJ contracts are deemed fraudulent when employment elements are present, companies will need to revise civil contracts, particularly those involving personal, habitual service provision under direct subordination.

Legal, compliance, and HR departments should act preventively by conducting internal audits and strengthening objective criteria for contractual autonomy.

The STF decision will play a key role in setting clear boundaries between lawful contracting and labor fraud. By establishing objective criteria, the ruling will improve predictability in labor relations and reinforce corporate accountability in adopting models that comply with current legislation.

Tax

IOF Tax Hike: Impacts, Justifications, and What Changes for Companies and Investors

In May 2025, the Federal Government announced and implemented significant changes to the Tax on Financial Transactions (IOF), citing the need to support fiscal balance, align monetary policy, and correct distortions in the tax system. These changes are part of Decrees No. 12,466/2025 and 12,467/2025 and align with efforts by the Federal Revenue Service to increase revenue and reinforce fiscal responsibility.

Despite technical justifications, these changes raise legal, economic, and operational concerns, particularly among businesses and investors. Below are the key highlights:

IOF-Credit Increase: Direct Impact on Companies’ Financial Costs

One of the most significant changes is the sharp increase in the IOF rate on credit operations for companies:

• Legal Entities (except Simples Nacional): From 1.88% per year (cap) to 3.95% per year (0.95% fixed + 0.0082% daily)
• Simples Nacional (transactions up to R$ 30,000): From 0.88% to 1.95% per year
• Credit cooperatives: taxed as regular companies if annual borrowing exceeds R$ 100 million, ensuring greater competitive balance.

Additionally, upfront supply transactions (forfaiting and supplier risk) were expressly regulated as credit operations subject to IOF, despite contradictions with prior guidance from the Federal Revenue Service (COSIT Solution No. 9/2016) and the Administrative Council of Tax Appeals (CARF), raising concerns over legality.

IOF-Forex: Unification and Rate Increases

Significant adjustments include:

• Remittances abroad and foreign currency purchases: Rate increased from 1.1% to 3.5%
• International and prepaid cards: New unified rate of 3.5%, halting the planned progressive reduction through 2028
• Short-term external loans (up to 364 days): Now taxed at 3.5% (previously 0%)
• Transfers for foreign fund investments: Now also subject to 3.5% IOF

These changes aim to correct distortions, curb tax evasion, and reduce forex volatility, though they may deter foreign capital inflows.

IOF-Insurance: Focus on High-Income and Private Pension Plans

Private pension plans with survival coverage, such as VGBL products, will be taxed at 5% on monthly contributions exceeding R$ 50,000, even if spread across multiple insurers.

The goal is to prevent the use of policies as low-tax investment tools for high-net-worth individuals while preserving exemptions for those with genuine retirement goals.

Effective Date:

The changes took effect on May 23, 2025, except for forfaiting and supplier risk transactions, which become taxable on June 1, 2025.

How TM Associados Can Help

Our team provides top-tier legal and tax advisory for businesses and investors, offering:

• Technical analyses tailored to the new IOF rates and rules;
• Contract diagnostics and impact assessments;
• Planning and restructuring to mitigate tax risks and protect margins.

Contact us to navigate this new landscape with security and strategic insight.

Fiscal Balance Measures: New Federal Package Aims to Increase Revenue and Strengthen Tax Justice

Facing a challenging fiscal scenario and the goal of eliminating the primary deficit by 2025, the Federal Government unveiled a robust package of measures targeting fiscal balance. The actions include IOF adjustments, review of tax benefits, new tax incidences, and financial system rationalization, with an estimated revenue potential of R$ 41 billion by 2026.

Key Tax Increases and Policy Changes

1. Taxation of Electronic Bets (BETs)
   • Change: Increased tax burden on online betting platforms.
   • Impact: Previously under-taxed, the sector will now contribute more significantly to federal revenue.
2. Standardization of Financial System Taxation
   • Change:
     • Review of financial market operations;
     • Adjustments to the taxation of securities and financial assets;
     • Broader allowance for offsetting gains and losses;
     • Stricter rules for tax offsets, curbing abusive planning.
   • Impact: Promotes tax fairness and prevents aggressive avoidance by large institutions and high-net-worth investors.
3. Taxation of Crypto Assets
   • Change: Initiation of systematic taxation of digital assets (e.g., cryptocurrencies).
   • Impact: Expands and formalizes the tax base of a fast-growing, loosely regulated sector.
4. Minimum Rate for Credit Rights Investment Funds (FDICs)
   • Change: Establishment of minimum IOF on FDIC operations.
   • Impact: Addresses distortions favoring funds traditionally used by large economic groups.
5. PEC on Tax Benefit Review
   • Change:
     • Gradual, across-the-board reduction of tax benefits for legal entities;
     • Exceptions: Simples Nacional, basic food basket, constitutional immunities, and nonprofits;
     • Applies to all types of incentives (exemptions, presumed credits, reduced bases, etc.).
   • Impact: Redistributes the tax burden, increasing it on currently favored sectors and promoting a more equitable environment.

Other Targeted Tax Reductions

While revenue-focused, the package includes tax cuts for strategic sectors:

• IOF reduction on:
  • Business credit;
  • Supplier risk operations;
  • Life insurance (e.g., VGBL);
• IOF exemption on:
  • Repatriation of direct foreign investments.

These measures aim to encourage productive credit and foreign capital inflows, aligned with economic stability and growth goals.

How TM Associados Can Help Your Company

Our team is ready to provide:

• Sector-specific analyses on the impacts of new measures;
• Strategic review of current tax benefits;
• Legal support in restructuring financial and contractual operations.

Contact us to learn how to protect your operations in light of these changes.