(b) Whether the gain on insurance of fixed assets under Article 14-3 of the Corporate Tax Act may be included in the calculation of losses in calculating the income amount for the business year to which the time of occurrence belongs even in cases where temporary diversion for business purposes

(c) Whether or not a creditor may offset other obligations owed to a third party obligor by making the claims subject to attachment as automatic claims by means of collection, where two double attachment is effected on the claims subject to attachment;

B. Where the insurance gain is included in the calculation of losses within two years from the commencement date of the business year following the business year without using it for the acquisition or improvement of the same type of fixed assets in the business year in which the insurance gain is generated, and the above period has passed without using it for the other party, the insurance gain shall be included in the calculation of earnings in the calculation of the income amount for the business year in which the period has passed pursuant to Article 14-3 (4) of the former Corporate Tax Act (amended by Act No. 4664 of Dec. 31, 1993). However, if the insurance gain has already been used for the other purpose without any intention to acquire or improve the substitute assets in the calculation of the income amount for the business year in which the date of occurrence under paragraphs (2) and (3) of the same Article belongs, it shall not be included in the calculation of losses in the calculation of the income amount for the business year in which the business year in which the date of occurrence falls, and it shall not be included in the calculation of the income amount for the business year in which the business has already been acquired or improved.

(c) In case where the creditor subjected to a seizure and collection order by the procedures for compulsory execution, becomes a double seizure against the seized claims, or there exists a demand for distribution, he shall not offset the other obligations which the creditor has borne to the garnishee by the method of collection, by making the seized claims automatically.

The costs of appeal against intervention shall be borne by the Intervenor joining the Defendant, and the remainder shall be borne by the Defendant.

On the first ground for appeal

1. If a claim is attached as a seizure before the determination of the national tax under Article 24 (2) of the National Tax Collection Act, the State will obtain the right to collect the seized claim when the national tax is determined;

According to the records of this case, on June 16, 1990, the plaintiff seized the claim of this case pursuant to Article 24 (2) of the National Tax Collection Act, and on the same day, the tax base and tax amount of the corporate tax of this case and defense tax, which are national taxes that served as the basis of the above seizure pursuant to Article 32 (2) of the Corporate Tax Act, were corrected and confirmed. The above non-party company was notified to the non-party international merchant stock company on the 30th of the same month and received a tax payment notice on the 20th of the same month. Thus, the plaintiff acquired the right to collect the claim of this case on June 16, 1990 where national tax of this case

Although the judgment of the court below is somewhat insufficient, it is justified in its conclusion that the plaintiff acquired the right to collect the seized claim of this case.

In the case of seizure of claims before the determination of national taxes under Article 24 (2) of the National Tax Collection Act, the right to collect claims shall be acquired only after the determination of national taxes, which is the basis of the national taxes, is again made after the seizure of claims under Article 24 (1) of the same Act. However, this cannot be accepted

2. Article 14-3 (1) of the Corporate Tax Act provides that "where a domestic corporation acquires the same type of fixed assets as a substitute for the destroyed fixed assets, or improves the acquired fixed assets or damaged fixed assets, the gains on insurance settlement required for the acquisition or improvement of such fixed assets may be included in deductible expenses in the calculation of the income amount for the business year which includes the date of receipt of insurance money under the conditions as prescribed by the Presidential Decree." Paragraph (2) provides that "Where it is impossible to acquire or improve the substitute assets in the business year which includes the date of receipt of the insurance money, the provisions of paragraph (1) shall apply only to the acquisition of the substitute assets or the improvement of the acquired fixed assets or the damaged fixed assets within two years from the beginning date of the business year following the business year in which the insurance money is received." Paragraph (3) provides that "a corporation which intends to be subject to the provisions of paragraph (2) shall submit a plan for the use of the insurance money received to the Government under the conditions as prescribed by the Presidential Decree." Paragraph (4) provides that the same purpose shall not be included in the above provision in the calculation period before the acquisition or improvement period is within the above.

However, the above insurance gain shall not be used for the acquisition or improvement of the same type of fixed assets in the business year following the business year in which the above insurance gain is generated and shall not be included in the calculation of losses within two years from the beginning date of the business year following the business year, and if the insurance gain is not used in the calculation of losses for the business year in which the above insurance gain is generated and the above period has expired under paragraph (4), it shall be included in the calculation of earnings in the calculation of the income amount for the business year in which the above period has lapsed under paragraph (4). However, if the insurance gain has already been used for the purpose of acquisition or improvement without any intention to acquire or improve the substitute assets, but if it was included in the calculation of the income amount for the business year in which the business year in which the above period has occurred under paragraphs (2) and (3) above, it shall not be included in the calculation of losses in the calculation of the income amount for the business year in which the business year in which the above period has occurred and it shall not be included in the calculation of the income amount for the business year in which belongs to the above paragraph (2).

According to the facts established by the court below, the above international merchant stock company is an affiliated company of this case in the year 1988 where the insurance gain of this case was generated and used as the fund for purchasing the stocks of the hotel of Taewon. Thus, the above international merchant stock company has no intention to acquire the substitute ship with the above insurance gain, but it is included in the expenses in the calculation of the income amount of the year 1988, which is the year when the above insurance gain of this case occurred pursuant to Paragraph 2 and 3 of the above Paragraph 2 of the above, with a plan to use the substitute ship to purchase the substitute ship within the above prescribed period, for the purpose of viewing the tax benefits only, the above insurance gain of this case can not be deemed as satisfying the above Paragraph 2 of this case, and therefore, even if the above international merchant stock company had no intent to acquire or improve the substitute assets within the above prescribed period, it cannot be deemed as unlawful in the calculation of the income amount of the above insurance gain of this case in the calculation of the income amount of the above 1988 business year.

Therefore, even if the disposition of this case is lawful or illegal, it cannot be deemed that the disposition of this case is a disposition of nullification of validity, and the judgment below is somewhat insufficient, but it is justified in its conclusion that the disposition of this case is not a legitimate invalidation.

3. Therefore, the court below did not err by misapprehending the legal principles on the validity of attachment disposition under Article 24(2) of the National Tax Collection Act or the legal principles on Article 14-3(2) and (4) of the Corporate Tax Act, as in the lawsuit. The grounds for appeal are without merit.

On the second ground for appeal

The creditor who has received a seizure and collection order by compulsory execution procedure shall not set off other obligations which the creditor has borne to the third party obligor by the method of collection, in case where there is a double seizure or a demand for distribution of the seized claims.

As to the claims subject to seizure of this case, prior to the collection order of the Intervenor’s Intervenor’s seizure and collection order, the seizure of claims by the Plaintiff pursuant to Article 24(2) of the National Tax Collection Act by the Plaintiff is possible. In such a case, as in the case where the seizure of claims is concurrent with respect to the claims subject to seizure, the Intervenor’s Intervenor, the collection obligee, like the case where the seizure of claims is concurrent with respect to the claims subject to seizure, shall not offset the claims subject to seizure

The judgment of the court below to the same purport is just, and there is no error of law by misunderstanding the legal principles concerning set-off against the collection obligee's automatic claim in the case where collection order competes with each other, such as the theory of lawsuit. There is no ground for discussion.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the supplementary intervenor. The remaining costs are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Sang-won (Presiding Justice)