[bzbarsky]

The legal structures for RSUs are pretty clear, and they are counted as ordinary income when they vest.

The particular shares involved _could_ have used a different legal structure, but that's not my understanding based on the articles I've seen about this.

But even in your hypothetical it would not all be capital gains. It would be ordinary income for the value of the shares at the point of the grant, and capital gains for the appreciation since then.