The review of stock options has gained ground at the STJ (Superior Court of Justice), but it requires checking the design of each plan and the time limits for recovering amounts.
The review of stock options entered companies’ agendas following the judgment of Theme 1,379 of the STJ. On 14/10/2026, the 1st Panel ruled out two charges on such plans. According to the Court, the employer social security contribution and the contributions earmarked for third parties do not apply upon the exercise of the option. In order to measure the scope of the decision, it is worth recalling how these plans work.
Under them, the company grants executives, employees or service providers the right to purchase shares at a price set in advance. As a rule, the beneficiary must meet certain conditions, such as a minimum period of service. After that, the beneficiary may exercise the option and pay the agreed amount.
If the market price exceeds the fixed price, the beneficiary acquires the securities at a discount. The beneficiary then becomes a shareholder and decides whether to hold or sell the shares. The Fazenda Nacional (Brazilian federal tax authority) regarded that difference as remuneration and levied contributions on it. As a result, many companies paid such amounts, challenged tax assessments or adjusted their payroll as a precaution. They must now decide the fate of the plans in force, of the amounts paid and of the pending disputes. In addition, they must carefully distinguish gains on shares from payroll items.
What the STJ decided and on what grounds
The binding thesis concerns the plans provided for in art. 168, § 3, of Law No. 6,404/1976, the Brazilian Corporations Act. That provision authorises the company to grant share purchase options to officers, employees or service providers.
The reasoning drew on Law No. 8,212/1991. Art. 22, item I, provides for the company’s contribution on remuneration intended to compensate work. Likewise, art. 28, item I, links the contribution salary to earnings with that purpose. For the reporting justice, however, the purchase option is commercial in nature. The beneficiary joins the plan, pays the price set and only afterwards may sell the shares. Accordingly, absent compensation for work, there is no basis for the contributions.
The reporting justice also acknowledged a limit. In his view, Theme 1,226 of the STJ, concerning Income Tax, does not by itself resolve the social security question. After all, the two taxes have distinct taxable events. Even so, the commercial characterisation adopted in that judgment served as a starting point. In Theme 1,226 of the STJ, the 1st Panel concluded that individual income tax (IRPF) does not apply upon the acquisition of the shares. The tax only reaches the subsequent sale, where there is a capital gain.
Elements that reinforce the commercial nature
The judgment attached weight to three features of the transaction. First, the beneficiary’s voluntary adherence. Second, the effective payment of the exercise price. Lastly, the risk of fluctuation in the shares, which the holder assumes upon purchase. The clearer these features are in the plan rules, the more firmly the thesis applies to the plan.
Points deserving attention
Some arrangements depart from the model examined by the court. In practice, closer scrutiny is warranted for plans that provide for:
- delivery of shares without payment of a price or for a nominal amount;
- cash settlement of the difference, without an actual purchase of the shares;
- repurchase guaranteed by the company at a minimum price, which eliminates the beneficiary’s risk;
- exercise conditioned solely on individual performance targets.
Gains on shares are not to be confused with payroll items
The central distinction in the judgment lies in the purpose of the payment. Salary, bonuses, commissions and gratuities compensate work and remain within the contribution base. On the other hand, the gain on the exercise of the option arises from a purchase, with an outlay and risk borne by the beneficiary. In other words, the benefit stems from the market, not from the payroll.
This difference calls for attention in the accounting entries. For instance, some companies pay a cash bonus so that the executive can fund the exercise of the option. That bonus, in principle, follows its own rule and may retain a remuneratory nature. Likewise, companies that record the gain on exercise as a salary item in eSocial (the Brazilian digital payroll and labour reporting system) should review their configuration.
Recovery of amounts in the review of stock options
A company that has paid contributions on the exercise of options may assess the recovery of those amounts. In theory, both an administrative claim for refund or offset and the judicial route are available. However, the right to claim repayment is subject to a statutory time limit, counted from each payment. Accordingly, each month without action may mean the loss of older assessment periods.
Recommended measures
- survey, by assessment period, the payments linked to the exercise of options;
- gather plan rules, adherence agreements and proof of payment of the price;
- identify tax assessments, defences and pending court proceedings;
- assess the recovery route and the time to stop making further payments.
What the judgment means in practice
In practice, Theme 1,379 of the STJ provides certainty for plans that follow the commercial model of Law No. 6,404/1976. In such cases, the exercise of the option does not give rise to the employer social security contribution or to third-party contributions. Moreover, the beneficiary’s income tax is deferred to the sale of the shares, as a capital gain. For companies, the precedent creates scope to review payments, recover amounts and defend against tax assessments.
Nevertheless, the precedent does not protect every arrangement labelled a stock option. It is our understanding that the review of stock options must test each set of plan rules against the logic of purchase, outlay and risk. Therefore, the concrete step is to obtain the judgment and the official thesis and to map the payments by assessment period. In this way, the company decides on the basis of figures, before the time limit erodes older amounts.
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