STJ rules out social security contributions on the exercise of stock options

In brief

The First Section of the Superior Court of Justice (STJ), unanimously, concluded the judgment of Repetitive Theme No. 1,379 on 10/14/2026. The Court held that neither the social security contributions nor third-party contributions are due when an employee exercises an option to purchase shares under a stock option plan. In the STJ’s view, the transaction is commercial in nature and is not compensation paid in return for work.

More details

The judgment involved Special Appeals No. 2,199,631/SP and No. 2,070,059/SP, reported by Justice Sérgio Kukina. The panel fully followed the Reporting Justice’s vote and dismissed the appeals.

Stock option plans allow companies to grant executives, employees or service providers the right to purchase company shares under certain conditions and at a pre-established price. Once the plan’s conditions are met, such as a minimum period of employment with the company, the beneficiary may exercise the option and buy the shares at the agreed price, which may be lower than the market price at that time. After the purchase, the beneficiary becomes a shareholder and may keep or sell the shares.

Issue addressed

The main issue was whether the advantage the beneficiary obtains when exercising the purchase option counts as remuneration for work and is therefore subject to social security and third-party contributions.

The National Treasury argued that the difference between the market value of the shares and the price paid by the beneficiary would be remuneration and should be taxed when the option is exercised. According to the National Treasury:

• the advantage would be granted in return for work, for employee retention and for alignment with the company’s goals, as shown by vesting periods, performance targets and termination rules;
• voluntary participation, payment for the shares and risk would not be enough to make the transaction commercial;
• Theme 1,226, which concerns Income Tax, should not apply automatically to social security contributions, because the two taxes have different taxable events;
• alternatively, each plan should be examined on a case-by-case basis, with contributions applying whenever there is evidence of consideration for work.

The main grounds of the vote by Reporting Justice Sérgio Kukina for ruling out the tax were:

• Theme 1,226 as a starting point: the Reporting Justice acknowledged that, because the taxable events differ, the precedent on Income Tax would not settle the dispute on its own. He considered, however, that the legal characterization given to the transaction in that judgment is an important starting point.
• Commercial nature of the transaction: the beneficiary joins the plan and, at the scheduled time, may buy the shares by paying the price previously set by the company. Only afterwards, as the owner of the shares, may the beneficiary sell them on the market. For the Reporting Justice, this structure shows a commercial transaction with no remuneratory character.
• Social security legislation: Article 22, item I, of Law No. 8,212/1991 provides for the company’s contribution on remuneration intended to compensate work, and Article 28, item I, links the contribution base to earnings received for that purpose. Because the transaction is not remuneration, employer and third-party social security contributions cannot be levied when the option is exercised.

Thesis established

The thesis proposed by Justice Sérgio Kukina and unanimously adopted was: “Under the stock option plan regime, provided for in Article 168, paragraph 3, of Law No. 6,404/76, as it is a transaction of a commercial nature, as defined in Theme 1,226/STJ, the employer’s social security contribution and contributions intended for third parties are not levied at the time the share purchase option is exercised, as it does not constitute remuneration intended to compensate work.”

Recommended assessment

This is an opportune time for companies to revisit their past practices and evaluate the potential benefits of aligning with the new ruling.