concurring.
I concur in the majority’s conclusion that the Tax Court correctly determined that the “delay compensation” that taxpayer received is business income under ORS 314.610(1). I write separately because the majority’s rationale does not respond completely to taxpayer’s arguments and misses taxpayer’s points in other important respects.
This case turns on the definition of “business income” in ORS 314.610(1), which provides:
“ ‘Business income’ means income arising from transactions and activity in the regular course of the taxpayer’s trade or business and includes income from tangible and intangible property if the acquisition, the management, use or rental, and the disposition of the property constitute integral parts of the taxpayer’s regular trade or business operations.”
Unless the delay compensation that taxpayer received is business income within that definition, taxpayer is under no obligation to apportion that income to Oregon according to the formula specified by ORS 314.605 to 314.670.
The department argues that the court need not concern itself with the complexities of the statutory definition, because it has adopted a rule that also defines business income and, under that definition, delay compensation is business income.
The rule, OAR 150-314.610(1),1 purports to expand the meaning of “business income” beyond the scope of the *379statutory definition. For example, the statute requires that business activity regarding property be an integral part of the taxpayer’s regular trade or business. By contrast, the rule declares that all transactions and activities that depend on or contribute to the taxpayer’s economic enterprise as a whole constitute an “integral” part of a trade or business. The rule also provides that all interest income is business income if the underlying intangible property arises out of, or was created in, the regular course of taxpayer’s business, or if the acquisition of the intangible “is related to or incidental to such trade or business operations.”
In my view, the rule pays insufficient heed to the requirement in the statutory definition that the listed activities regarding property factually must constitute integral parts of the taxpayer’s regular business. The department’s effort to define virtually every transaction involving property as an “integral part” of every taxpayer’s business demonstrates legal ingenuity without legal accuracy. The department’s rule does not obviate the necessity of interpreting the statutory definition.
ORS 314.610(1) defines business income as income derived from two sources. The first source is “income arising from transactions and activity in the regular course of the taxpayer’s trade or business.” The department describes that portion of the definition as a “transactional” test.
*380The second source is
“income from tangible and intangible property if the acquisition, the management, use or rental, and the disposition of the property constitute integral parts of the taxpayer’s regular trade or business operations.”
The department describes that portion of the definition as a “functional” test. I will adopt the department’s nomenclature in referring to the two elements of statutory definition.
The parties disagree about whether and how the two tests operate together. Their dispute centers on the meaning of the phrase “and includes” in the statutory definition. Taxpayer contends that, in order to qualify as business income, all forms of income must satisfy the transactional test and that income from property also must satisfy the functional test. The department contends that each part of the statutory definition identifies a kind of business income. According to that view, income that satisfies either the transactional or the functional test constitutes business income. The department contends that delay compensation satisfies both the transactional and functional tests.
Taxpayer asserts that the transactional test is not satisfied here. According to taxpayer, the condemnation of the property was an extraordinary disposition, not a transaction or activity in the regular course of its trade or business.
Taxpayer also offers a series of propositions to demonstrate that the functional test is not satisfied. For example, taxpayer contends that the functional test requires three types of activities regarding property, i.e., (1) acquisition, (2) management, use or rental, and (3) disposition and that, because the statute joins that list of activities with the conjunction “and,” all three types must constitute integral parts of taxpayer’s regular trade or business operations. Taxpayer argues that the court must apply the functional test to the very form of income that taxpayer received, i.e., delay compensation, and should resist the department’s attempt to analogize delay compensation to something that it is not, such as interest on an account receivable. Finally, taxpayer *381argues that the functional test applies to income when taxpayer receives it and that taxpayer’s later use of the income has no bearing on a decision whether income from property constitutes business income. I agree with each of taxpayer’s propositions regarding proper application of the functional test. However, for the reasons discussed below, I conclude that taxpayer’s delay compensation is business income.
The difficulty with taxpayer’s position is that the condemnation that occurred here satisfies both the transactional and functional tests. Taxpayer’s business is the growth and harvesting of timber and the manufacture of wood products. The condemnation forced taxpayer to sell property that consisted of land and trees. The trees represented almost all the value of the condemned property (more than 91%). I am unable to see how the fact that the condemned property included a small real property component alters the essential character of the transaction as a forced sale of taxpayer’s valuable standing timber. The involuntary nature of the sale and the absence of prior sales of real property by taxpayer also play no role in the analysis under the transactional test. Taxpayer’s receipt of full value for its timber is, in the terms of the transactional test, a transaction and activity in the regular course of taxpayer’s business.
The government paid delay compensation here to make taxpayer whole as a result of its delay in paying just compensation for the condemned property. Delay compensation represents part of the government’s payment of full value to taxpayer for its property. Such compensation is an essential component of the judgment in the condemnation proceeding and, thus, constitutes income that arises from activity that satisfies the transactional test.
The functional test addresses income from property. It treats income from property as business income only if each of the three listed forms of activity regarding the property are “integral parts” of taxpayer’s regular trade or business operations. Taxpayer argues that, because it never has sold the land on which it grows trees, the disposition of land plays no part, let alone an integral part, in taxpayer’s business.
*382What was said above, in connection with the discussion of the transactional test, defeats taxpayer’s argument. The condemnation judgment attributed almost all the value of the condemned property to the trees. The processes of acquiring, managing, and disposing of commercial timber for full value are integral parts of taxpayer’s business operations. As noted, delay compensation was a component of the government’s obligation to pay full value for taxpayer’s property and, therefore, was income from property within the meaning of the functional test.
Taxpayer relies on Sperry & Hutchison v. Dept. of Rev., 270 Or 329, 331-32, 527 P2d 729 (1974), in which this court held that the taxpayer’s income from long-term investments was not apportionable to Oregon “because neither the capital invested nor the income derived therefrom are a part of the trading stamp business conducted in this state.” That case is distinguishable. Both the capital invested in taxpayer’s tree-growing operation and the income derived from that operation, in part in the form of delay compensation, are integral parts of taxpayer’s business operations.
Because the delay compensation received in this case was business income under both the transactional and functional tests, I need not decide here whether, in order to be business income, the income need satisfy only one of the tests or must satisfy both the transactional and functional tests.
For the reasons expressed above, the Tax Court correctly decided that the delay compensation received that taxpayer was business income. Therefore, I concur in the result reached by the majority.
OAR 150-314.610(1)-(A) provides, in part:
“ORS 314.610(1) defines “business income’ as * * *. For purposes of administration of ORS 314.605 to 314.670, the income of the taxpayer is business income unless clearly classifiable as nonbusiness income under ORS 314.605 to 314.670 and the rules thereunder.”
OAR 150-314.610(1)-(B) provides, in part:
“The classification of income by the labels occasionally used, such as manufacturing income, compensation for services, sales income, interest, dividends, rents, royalties, capital gains, operating income, nonoperating income, etc., is of no aid in determining whether income is business or nonbusiness income. Income of any type or class and from any source is business income if it arises from transactions and activity occurring in the regular course of a trade or business. * * * In general, all transactions and activities of the taxpayer which are dependent upon or contribute to the operations of the taxpayer’s economic enterprise as a whole constitute the taxpayer’s trade or *379business and will be transactions and activity arising in the regular course of, and will constitute integral parts of, a trade or business. The following are rules and examples for determining whether particular income is business or nonbusiness income. * * *
“(2) Gains or losses from sale- of assets. Gain or loss from the sale, exchange, or other disposition of real or tangible or intangible personal property constitutes business income if the property while owned by the taxpayer was used in the taxpayer’s trade or business. However, if such property was utilized for the production of nonbusiness income or otherwise was removed from the property factor before its sale, exchange or other disposition, the gain or loss will constitute nonbusiness income. * * *
“(3) Interest. Interest income is business income where the intangible with respect to which the interest was received arises out of or was created in the regular course of the taxpayer’s trade or business operations or where the purpose for acquiring and holding the intangible is related to or incidental to such trade or business operations.”