A Q&A guide to employee share plans law in Argentina.
The Q&A gives a high level overview of the key practical issues including, whether share plans are common and can be offered by foreign parent companies, the structure and rules relating to the different types of share option plan, share purchase plan and phantom share plan, taxation, corporate governance guidelines, consultation duties, exchange control regulations, taxation of internationally mobile employees, prospectus requirements, and necessary regulatory consents and filings.
To compare answers across multiple jurisdictions, visit the Employee share plans Country Q&A tool.
The Q&A is part of the PLC multi-jurisdictional guide to employee share plans law. For a full list of jurisdictional Q&As visit www.practicallaw.com/employeeshareplans-mjg.
In the last ten years it has become more common for employees to be offered participation in an employee share plan, especially where the company is part of an international group.
However, these benefits are not widespread and are normally reserved for senior executives and key employees. It is increasingly common to offer these plans to senior executives and key employees as a retention tool.
There are no laws or regulations which limit or restrict the offering of a foreign parent company's shares to employees of the same company group. Therefore, such plans are lawful in Argentina.
There are no laws or regulations in relation to the types of share option plan that can be used. Multinational companies can use different employee share plans, and plans can vary greatly from company to company.
Main characteristics. The employee is granted the option to buy a specific amount of shares at a specific price (usually lower than the market price) within a certain period of time.
The option to buy shares is normally subject to time-vesting conditions (see Question 6), as well as other conditions. In addition, since these plans are normally used as a retention tool, employees can usually exercise the option to acquire the shares, provided they are working for the company at the time the shares vest.
Types of company. All private companies can offer a stock option plan to their employees. In Argentina, there are only a few listed public companies and the implementation of this kind of plan by a listed public company must be expressly authorised.
Popularity. Share option plans are used by some international groups of companies and are usually reserved for senior executives and key employees. While share options plans are not very widespread among companies yet, it is more frequent that companies have in place bonus schemes which are normally paid on the basis of the employee’s annual performance and/or the company’s results.
Discretionary/all-employee. Share option plans are granted on a discretionary basis. However, to minimise the risk of a claim being brought by an employee who is deprived of the benefit without an objective reason, the grant should:
Preferably, be made on objective grounds (that is, based on the employee's position, individual performance, company's results and so on).
Not constitute discrimination.
Non-employee participation. There are no legal restrictions on granting share option plans to non-employee directors, consultants or employees. However, it is not common to grant these plans to consultants. Share option plans are usually reserved for high-level employees and directors.
Maximum value of shares. In principle, there is no limit to the value of shares that can be held under a share option plan, either per company or per employee.
Market value. Share option plans can be granted with an exercise price at above or below their market value. However, since these plans are commonly used to incentivise and retain employees, share option plans are usually granted with an exercise price below market value.
There are no taxes or social security obligations arising solely from the grant of an option. Listed corporations can offer their employees share option plans that will benefit from social security and tax exemptions, provided the following conditions are met (among others) (section 43, Law No. 23576 and Executive Order No. 156/1989):
All employees are eligible to participate in the plan.
The shares are granted to the employees at no cost.
The shares cannot be disposed of for at least the first three years from the grant.
The benefits are as follows:
The amounts that the company used for the subscription or acquisition of its own shares for the plans are:
deducted from income tax up to 20% of net income after losses;
not used to calculate severance, salaries or any other compensation for labour or social security purposes; and
exempted from social security contributions.
The shares, as well as any gains or benefits arising from them, are exempted from any taxes, provided they are not disposed of by their beneficiaries (see Question 7).
The company can specify (among other things) that the option is only exercisable if certain performance or time-based vesting conditions are met.
The option to purchase shares is usually subject to the following conditions (among others):
Time-based vesting conditions (since these plans are normally used as retention tools).
An evaluation of the employee's individual performance.
Employee's continued service.
In addition, it is possible to impose temporary restrictions on the employee's ability to transfer the shares.
Since share option plans are normally used as a retention tool, it is very frequent to specify that the options are only exercisable if certain conditions are fulfilled.
There is no requirement to pay taxes or social security contributions when performance or time-vesting conditions are met.
Tax and social security obligations are usually payable when the employee exercises the option to buy the shares.
Tax. Since there is no favourable tax treatment for share option plans (except for listed corporations, subject to the fulfilment of several conditions (see Question 5)), income received by an employee arising from an employment relationship is subject to income tax unless expressly exempted (section 20(i), Income Tax Law (ITL)). Income tax should be paid (and withheld from the employee's salaries) when the employee exercises the option, provided there is no time restriction on the employee's ability to transfer the shares (either for a set period of time or until the employee leaves the company). When an employee exercises a share option that includes a temporary restriction on the ability to transfer the shares, the corresponding income only becomes taxable once the restriction on transfer has ceased. This is because the disposition of the income is an element of the cash method.
Social security. Argentine labour courts are not in complete agreement as to whether benefits arising from a share option plan are considered salary. Salary is considered any consideration received by an employee as a consequence of an employment contract (section 103, Employment Contract Law). This interpretation of salary was recently supported in a decision by the Argentine Supreme Court. However most scholars and judges consider the "profit" obtained by an employee to be salary. In this context, the profit is either the:
Value of the shares, if they are awarded at no cost.
Difference between the fair market value and the exercise price (if they are offered at a price lower than the market value). Therefore, as a general rule, social security contributions should be paid on the profit (although there is a minority view that profits received by an employee do not constitute salary). As an exception, bonuses that are not paid regularly or frequently (such as a one-time bonus payable at a company's 50th anniversary) are exempted from social security contributions (section 6, Law No. 24241). Therefore, exceptional benefits received by an employee arising from a share option plan may be exempted from social security contributions in these circumstances.
However, there has been some controversy over the timing of the tax liability, arising from income derived from the exercise of share options where the employee is unable to transfer the shares, due to a temporary restriction. The Argentine Tax Authority (Tax Authority) has argued that income arising from a share option plan must always be recognised at the time the employee exercises the option, regardless of any temporary restriction on the employee's ability to transfer the shares (section 110, paragraph 2, ITL Implementing Decree). Nevertheless, the timing of the tax liability arising on this income should still be governed by the general principles of cash-basis accounting (that is, "availability" when the employee is free to sell the purchased shares) (Tax Report No. 49/2007). In addition, the main tax implications for an employee residing in Argentina as a consequence of exercising the option are:
Subject to specific thresholds, personal asset tax on the acquired shares.
Dividends are not subject to income tax (section 46, ITL) except where such dividends are paid by foreign companies (section 140.a, ITL). The following contributions must be paid when the employee exercises the option to purchase the shares:
the employer must pay between 23% and 27% contributions, with no cap;
employees must pay 17% contributions, with a cap. As of March 2012, the cap has been fixed at ARS19,070.55 (Law No. 26417 and its regulations) (as at 1 August 2012, US$1 was about ARS4.56). Income tax must be paid by the employee in accordance with a progressive tax rate schedule for individuals, with a maximum rate of 35%.
Since social security obligations are paid on exercise, no payment is required on sale (see above). In addition, capital gains from a sale of the acquired shares by the employee are not subject to income tax. Capital gains derived from the sale of shares made by individuals who reside in Argentina are not taxed.
The employee's tax and social security obligations are withheld from the employee's salary by the employer during the month in which they must be paid. The contributions are then deposited by the employer with the Tax Authority.
There are no special types of share acquisition or purchase plans operated in Argentina. Therefore, employers are free to issue share acquisition or purchase plans on any terms.
Main characteristics. In a share acquisition plan, employees are either:
Offered a right to acquire or purchase shares in their employer or a related company.
Awarded shares of their employer or related company at no cost.
Since there are no regulations applicable to this plan, employers are free to determine the terms and conditions applicable to it.
Types of company. Any type of private company can offer a share acquisition plan to its employees.
There are a few listed public companies in Argentina. The implementation of this kind of plan by a listed public company must be expressly authorised by law.
Popularity. It is not common to offer employees the right to acquire shares at no cost or at a cost below the market value with no conditions attached.
Generally, the employer's intention behind share acquisition plans is not for its employees to participate in its business, but rather to retain key employees by imposing:
Time-based vesting conditions.
Continued service conditions.
Discretionary/all-employee. The rules for share acquisition plans are the same as for share option plans (see Question 4, Share option plan: Discretionary/all-employee).
Non-employee participation. There are no restrictions on issuing shares to non-employee directors or consultants.
Maximum value of shares. The rules for share acquisition plans are the same as for share option plans (see Question 4, Share option plan: Maximum value of shares).
Payment for shares and price. There is no maximum.
Tax and social security obligations normally arise when the shares are awarded or acquired. Typically, the profit obtained by an employee (the value of the shares, if they are awarded at no cost, or the spread between the fair market value and the exercise price if they are offered at a price lower than the market value) is considered salary and subject to income tax and social security contributions (see Question 8, Share option plan: Tax).
However, bonuses that are not paid regularly or frequently are exempted from social security contributions (section 6, Law No. 24241). Therefore, the exceptional benefits received by an employee arising from a share acquisition plan may be exempted from social security contributions if such criteria are met.
The company can award the shares subject to restrictions that are only removed when performance or time-based vesting conditions (or any other objective conditions) are met. Exercising the option to purchase shares is usually subject to the following conditions (among others):
Time-based vesting conditions (since these plans are normally used as retention tools).
An evaluation of the employee's individual performance.
Continued service conditions.
Since share acquisition plans are normally used as a retention tool, it is very frequent to impose performance and/or time-based vesting conditions.
There are no taxes or social security contributions payable when performance or time-vesting conditions are met. Tax and social security obligations arise when the shares are awarded to or acquired by an employee (see Question 12).
Since social security obligations are paid on exercise (see Question 8). There is no requirement for payment to be made on sale.
Gains from a sale of the shares by the employee are not subject to income tax, since capital gains derived from the sale of stocks made by individuals residing in Argentina are not levied with income tax.
There is no statutorily prescribed form of phantom or cash-settled share plans in Argentina. Therefore, employers are free to design plans to meet their needs or requirements.
Main characteristics. A phantom share plan is structured to offer an employee a cash payment whose value is normally tied to either:
The value of the shares of the employer.
A related company.
No shares are technically issued or transferred when implementing a phantom share plan.
Types of company. Any type of company (public or private) can offer a phantom share plan to its employees.
Popularity. Since phantom share plans do not require any real participation in the employer's business from the employees and are less sophisticated, they are:
Relatively popular in multinational companies.
Usually reserved for senior executives and key employees.
Discretionary/all-employee. The rules for phantom share plans are the same as for share option plans (see Question 4, Share option plan: Discretionary/all-employee).
Non-employee participation. The rules for phantom share plans are the same as for share option plans (see Question 4, Share option plan: Non-employee participation).
Maximum value of awards. There is no limit to the maximum award value that can be granted under a phantom share plan, either per company or per employee.
No tax or social security obligations arise when a phantom share plan is awarded to an employee. However, tax and social security contributions must be paid when the employer makes payments to an employee under such a plan (see Question 21).
There is no favourable tax treatment applicable to phantom share plans.
The rules for phantom share plans are the same as for share option plans (see Question 6: Share option plan).
No tax or social security obligations arise when performance or time-base vesting conditions are met. However, tax and social security contributions are payable when the employer makes payments to an employee under such a plan (see Question 21).
Tax. Since there is no favourable tax treatment for phantom share plans, any income received by an employee arising from an employment relationship is taxable unless expressly exempted (section 20(i), ITL). Income tax must be paid by the employee in accordance with a progressive tax rate schedule for individuals, with a maximum rate of 35%. The employee's tax and social security obligations are withheld from the employee's salary by the employer during the month in which they must be paid. The contributions are then deposited by the employer with the Tax Authority.
Social security. Since salary is considered to be any consideration received by an employee as a consequence of an employment contract, as a general rule, social security contributions should be paid over salary (section 103, Employment Contract Law). Therefore, in principle, any payment made under a phantom or cash-settled award is subject to social security contributions.
However, bonuses not paid regularly or frequently (such as a one-time bonus payable at a company's 50th anniversary) are exempted from social security contributions (section 6, Law No. 24241). Therefore, exceptional benefits received by an employee arising from a phantom or cash-settled award may be exempted from social security contributions in these circumstances.
The following security obligations must be paid by both the employer and the employees when the employees are awarded or acquire the shares:
The employer must pay between 23% and 27% contributions with no cap.
Employees pay 17% contributions with cap.
As of March 2012, the cap has been fixed at ARS19,070.55 (Law No. 26417 and its regulations).
There are no institutional, investor, shareholder or other guidelines that apply to any of the above plans.
When launching an employee share plan, the parties are not required to notify, consult or reach agreement with employee representative bodies. However, such requirements can be expressly provided for by the parties.
If an employee share plan is granted to senior executives and key personnel, employee representative bodies are not usually involved. This is because senior employees usually do not have employee representation.
Share plans usually impose:
Time-based vesting conditions.
Continued service conditions.
Therefore, it is usually provided in the plan that employees are not entitled to any compensation for loss of options or awards on termination of employment if, before the shares vest or the time-based vesting conditions are met, the employee either:
Resigns from employment.
Is dismissed for gross misconduct.
However, since it is possible for an employer to dismiss an employee without grounds and pay him severance (section 245, Employment Contract Law), it is uncertain whether employees are entitled to receive compensation for loss of options in cases of dismissal without cause. This is because the employee would be deprived of the right to exercise the option due to the employer's ungrounded and voluntary decision. There are some court decisions which support this, as under Argentine law, conditions whose fulfilment is completely within the power of the obligated party are not valid (section 542, Argentine Civil Code).
Currently, employees are not entitled to wire transfer money from Argentina to fund the purchase of shares under an employee share plan.
Exchange control regulations do not require employees residing in Argentina to repatriate proceeds from the disposition of shares. Resident employees may repatriate up to US$2 million per calendar month without approval from the Argentine Central Bank. If an employee repatriates more than US$2 million per calendar month from the sale of shares, bonds or other financial investments made abroad, 30% of any excess must be placed in a non-interest-bearing account for 365 days. In addition, employees must provide to the Argentine bank evidence in connection with the source of the cash proceeds.
Argentine residents are taxed on their worldwide income, while non-residents are liable for Argentine-source income only. Under Argentine law, all income received by an employee arising from an employment relationship is taxable (unless expressly exempted). The tax consequences of exercising the option in another jurisdiction is made on a case-by-case basis, based on:
Whether or not the employee has lost residence status. The loss of resident status would be effective after communicating this circumstance to the Argentine Tax Authority. For example, individuals who are resident in Argentina will lose their residence status when they acquire permanent residence in another country or remain continuously in another country for 12 months or more. Short trips to Argentina do not interrupt the 12-month continuous period if, cumulatively, the trips do not exceed 90 days in a 12-month period.
Whether the option is payment for services rendered in Argentina or another jurisdiction. The option should be analysed both in general and with regard to the particular circumstances on which it is granted. For example, the option could relate to a future period when the share option is granted without any condition to an employee who either takes up an employment, is transferred to a new country or is given significant new responsibilities.
Conversely, the opposite could apply if the option was granted to employees who were employed during a certain period, on the basis of past performance or due to financial results of previous accounting years.
Whether the employee remains on the payroll of the local corporation.
The period of time the employee has worked in Argentina.
Salaries received from abroad for activities performed within Argentina are subject to tax (section 111, ITL Implementing Decree). Therefore, it is important to determine whether the option is received in consideration for previous or future services. The following must be considered:
Whether or not the employee is an Argentine resident. Foreign individuals with a temporary visa (as well as accompanying relatives) who are required to remain in Argentina by reason of their employment for less than five years are not considered Argentine residents.
The general and particular circumstances under which the option is granted.
Whether the employee remains on the payroll of the foreign corporation, or is included in the affiliate's payroll.
The period of time the employee has worked in Argentina.
When the share is not registered to trade publicly in Argentina, there are no prospectus requirements as long as the offering of the shares in Argentina falls within the private placement exception under Argentine securities laws (Law No. 17,811 and securities regulations). To such end, the offering must meet the following main conditions:
Offering of the shares in Argentina must comprise a reduced group of employees and other investors (a maximum number is not specified in the laws).
No broad distribution of offering materials is made.
No advertisement or other publicity relating to the shares is made.
Employee share plan offerings of shares not registered locally have customarily been implemented in the form of private placements.
There are no prospectus exemptions available specifically for employee share plan offerings.
If the employer intends to send an employee's personal information to someone outside of the employer's organisation (such as an overseas parent company or a plan administrator), the employer must request the employee's prior written consent (Law No. 25326).
There are no other requirements applicable to employee share plans if the plan of shares not registered to trade publicly in Argentina is offered to employees in the form of a private placement.
If the employer intends to send an employee's personal information to someone outside of the employer's organisation (such as an overseas parent company or a plan administrator), the employer must request the employee's prior written consent (Law No. 25326).
Although there is no specific legal requirement to translate plan documents into Spanish, it is highly advisable to avoid any uncertainty as to whether the employees have fully understood the conditions of the plans (the burden of proof is on the employer).
Plans written in a foreign language must be translated into Spanish to be admitted as evidence in a trial.
For the share plan agreement to be binding, it is advisable that it be executed (in writing) by both the employer and employee.
If the employer grants the benefit of the plan to its employee electronically, the employer must recognise the agreement and cannot reasonably refuse to recognise the agreement due to the fact that it was not executed in writing by the parties.
Witnesses and notarisation are not required in order for share plan agreements to be binding.
The employee's consent is generally required for the purposes of administering his options or awards under share plans. For example, in order to deduct the amount of the shares acquired under a plan from an employee's wages, the following requirements must be complied with:
The employee must grant his express written consent.
Deductions cannot exceed 20% of the employee's total wages.
The price of the shares cannot be higher than the market value price.
The employer must have granted to the employee a discount over the market value price.
The employee must have voluntarily decided to acquire the shares.
The sale of shares must be real and not used as a mechanism to reduce the employee's wages.
The employer must also obtain the employee's prior written consent before sending the employee's personal information to someone outside of the employer's organisation (see Question 32).
These responses assume that the plan of shares not registered to trade publicly in Argentina is offered to employees by way of a private placement.
There have been no developments relating to employee share plans over the last year.
There are currently no proposals for reform.
Description. This website contains Argentine legislation. It is managed by the Minister of Economy and Public Finances and contains official information. There are no English translations available.
T +5411 4590 8600
F +5411 4590 8601
E julio.caballero@mcolex.com
W www.mcolex.com
Qualified. Argentina, 1988
Areas of practice. Labour; social security.
Recent transactions
T +5411 4590 8600
F +5411 4590 8601
E julio.martinez@mcolex.com
W www.mcolex.com
Qualified. Argentina, 1995
Areas of practice. Securities and banking regulations.
Recent transactions
