The rules for the tax treatment of non-competition agreements are simple, provided the parties understand the tax treatment of these alliances and the willingness to do business. Goodwill is considered an investment and the seller can process the amount allocated to goodwill at advantageous rates of return. Unfortunately, the buyer will be denied any tax deduction, as it is assumed that the goodie has an indeterminate utility term. If the owner enters into a clearing agreement that is not restrictive to competition, the consideration received is imposed on the owner at normal income rates, whether the transaction is structured as a sale of shares or assets. However, if the Confederation is simply concluded to ensure the transfer of value, the Confederation does not necessarily lead to a decent income for the beneficiary, but can be considered as a part and a package with the purchase of the business. In such a situation, the value that can be added to the federal state can lead to a treatment of the capital gain. It would be useful to take a closer look at the tax treatment of a non-compete clause that the seller-employee entered into when buying shares and buying shares with a common choice within the meaning of section 338 (h) (10). Let`s see an example. Sellers A and B, S companies, have been in business for 15 years.
Both sell their businesses for a total of $2.5 million and each have $500,000 in their respective operations. Both enter into three-year consulting contracts. Seller A has a non-competition agreement with his company that prohibits him from competing with the company for a period of three years if he leaves the business or if, for the most part, all assets are sold as part of a consensual sale (i..dem sale of assets). However, in various facts, the courts have treated Confederation as capital. In the applicant Ullman, the Tribunal found that the Confederation was not separated from the acquired asset (264 F.2d to 307-308) if „an alliance is so closely linked to a sale of goodwill that it has no autonomous meaning, except only to ensure the effective transfer of that goodwill.“ Similarly, „an agreement to not face competition is necessary to obtain a goodwill transfer, payments made under this wealth can be treated as if they were made for the sale of an asset“ (Barran, 334 F.2d/ 61). Referring to Schultz, the Allison Tribunal stated that Seller B did not have an existing non-compete agreement that he could transfer in connection with the sale, so that the buyer requires the seller to enter into a three-year non-compete contract as a condition of the sale. If Seller B attempts to distribute the total purchase price in the same way as Seller A, the IRS will redefine some of the goodwill payments as disguised consulting payments.