The STJ already has a consolidated understanding in the sense that the buyer in good faith has the right to credit the tax arising from an invoice later declared disreputable. Thus, in this sense, the merchant in good faith who acquires goods, whose invoice (issued by the selling company) was later declared unreliable by the tax authorities, can engender the use of the ICMS credit by the principle of non-cumulativeness, once the veracity of the purchase and sale carried out (In this sense: EDcl in EDcl in REsp 623.335/PR, Reporting Justice Denise Arruda, First Panel, judged on 03.11.2008, DJe 04.10.2008; REsp 737.135/MG, Reporting Minister Eliana Calmon, Second Panel, judged on 08.14.2007, DJ 08.23.2007).
Well, in an action that deals with an issue exactly the same as the one conducted by lawyer Augusto Fauvel de Moraes, that is: (i) buyer in good faith who acquired goods and made the ICMS credit; (ii) later the invoice was declared disreputable by the tax authorities; the São Paulo Court of Justice dismissed the tax assessment notice issued against the taxpayer who was credited with ICMS from the Invoice.
According to the judgment reported by Judge Marrey Uint of the 3rd Chamber of Public Law of the Court of Justice of São Paulo, in cases such as these “the principle of good faith must be observed, and acts of good faith cannot be effective against third parties in good faith”. legal issues - such as the issuance of invoices by a company later considered disreputable".
He also highlighted that, in cases like this, "proved that the invoice declared to be disreputable gave physical and effective entry of goods into the taxpayer's establishment, his good faith has been configured, which is more than sufficient reason to give legitimacy to ICMS credits." taken advantage of”.
Here is the summary of the judgment:
"Civil appeal - Tax Law - Annulment claim - Allegation of unsuitability of the company that carried out commercial transactions with the Plaintiff - Declaration subsequent to the business that gave rise to the credit that cannot reach the acquirer in good faith - Precedent and precedent 509 of the STJ - Appellant's voluntary appeal provided and the necessary remittance was not provided”. (TJSP; Appeal / Remittance Required 1005061-51.2017.8.26.0510; Rapporteur: Marrey Uint; Judging Body: 3rd Chamber of Public Law; Court of Rio Claro - Public Treasury Court; Date of Judgment: 03/12/ 2019; Date of Registration: 03/14/2019)
Source: Backstage Tax Portal.