Kinds of Non-compete Agreements
There are actually two kinds of non-compete agreements (covenants not to compete)
- Employment agreement
One kind is signed by employees saying that if they leave the company they will not compete with their former employer for a specific length of time within a certain area.
- Business purchase agreement
The other kind is signed by business owners who sell their businesses; they sign an agreement not to compete with the new owner for a certain length of time within a certain area.
Payments not to compete
Both kinds of non-compete agreements come with a payment to the employee or business owner as fair compensation for the agreement not to make money competing with the former employer/new business owner. Non-compete agreements must adhere to state laws, and some states have ruled them not valid; check with your attorney before signing a non-compete agreement.
How Is the Non-compete Payment Treated for Tax and Accounting Purposes?
In either type of non-compete agreement, the payment is considered a legitimate business expense. If you buy a company and pay the former owner $300,000 for his or her agreement not to compete, you can take this $300,000 as a business expense. The same is true if you compensate an employee for signing an agreement not to compete.
Can the Expense be Taken in One Year?
The question, though, is whether you can take the expense in one year or whether you must amortize it (spread it out) over several years. In a 2010 Tax Court case (T.C. Memo 2010-76 (pdf)), a company paid $400,000 to a former employee for a one-year covenant not to compete. The Tax Court ruled that even though the agreement was for one year, the non-compete agreement was an intangible as defined in Section 197 of the Internal Revenue Code, and it should be amortized over 15 years.
The Tax Court's ruling cost the company a good deal of money in taxes owed and in fines and penalties, because they couldn't take the expense in one year.
Just another example of the benefit of hing a good tax adviser for your business.
Disclaimer: This article is presented for general information purposes only, and should not be relied upon as tax or legal advice. Every situation is different; consult with your tax advisor before making any decisions or taking any actions that can have tax implications.
More about non-compete agreements, including state laws and non-competes.