The opinion
Disney,
dissenting: I can not agree with the conclusion reached by the majority opinion on the second point, that is, holding that interest upon a condemnation award is not ordinary income. In my opinion, since in the condemnation proceeding the property is taken and valued as of a certain date, the amount ultimately paid above the aAvard proper, that is, the value of the land taken or other damages, is compensation for the delay in the payment of the award, that is, compensation for the use of money, which is the essential definition of interest. Had the award been paid at the same time as the taking of the property, or the ascertainment of the amount of damages, no additional sums would have been required to pay the obligation of the government or municipality condemning the property. The effect is that the taxpayer’s money is being detained and used by the con-demnor and, although in a very general sense the whole amount paid is “just compensation” to the condemnee, in a more accurate and particular sense only the amount of the award, for property or damages, is compensation for- such property or damages, and, in my opinion, in the matter of income taxes we should view the situation in the more particular meaning of the term “compensation.” The “interest” is paid for delay in payment only. As I view the question, Commissioner v. Kieselbach, 127 Fed. (2d) 359, states the better rule on this question, when it holds that interest is ordinary income. I therefore respectfully dissent.