In addition, in one case, it was established that if the asset is in the nature of the subject`s commercial law, the non-competition action is liable for capital gains. However, if the non-competition clause concerns a subject who actually executes the transaction and who is not only entitled, the tax may be perceived as business income. When negotiating a business sale, it is important to address tax issues related to „the allocation of the purchase price“ at the negotiating stage of the transaction. In addition to the distribution of the purchase price between personal and non-compete agreements, a properly structured allocation also includes reasonable percentages divided between other activities such as inventory, equipment and other personal assets of the company. Compare this treatment to section 338 (h) (10) or an asset acquisition where a federal government allowance provides the purchaser with the same tax treatment as a value allowance (i.e., a 15-year amortization). On the other hand, as explained below, an immaterial contract for the transfer of value does not necessarily result in a separate immaterial. The bundessteuerrecht imposes that a part of the purchase price is attributed to a confederation, not to the competition. This leads to potential pitfalls for the unwary. In general, when a business is sold, most of the profit to the seller is long-term capital gains that are taxed at attractive prices. However, any amount allocated to the federal government for non-competition is an ordinary income that is taxed at the highest individual rate applicable to the seller. This is why most sellers want to allocate a small amount to this item. The buyer is indifferent from a tax point of view, because the costs are depreciated in the same way as the cost of the value.
However, there is an unscathed reason for the purchaser to allocate a significant amount to the Confederation. If the seller violates the Confederation and introduces a new transaction in the same territory, the buyer can take legal action. If the buyer succeeds and the seller is found to be aggrieved, the buyer must prove damages. The seller`s lawyer will inform the court that the buyer and seller have already set the amount of the damage and have included it in the original contract. The lawyer will then show the court the amount that both parties have allocated to Confederation and ask the court to award damages of that amount. In my own practice as a CPA and a tax and business lawyer in San Francisco, I have seen service companies sold for millions of dollars, with a sum that has been allocated to the Federal Government for not competing for only ten thousand dollars. If the seller decides to take over the business and ask his former customers in direct violation of the federal government, that might be his only price. In the age of globalization, the world of mergers and acquisitions is growing rapidly, and the race for organic and inorganic expansion is taking place around the world. Strategies that focus on core activities or diversify into new businesses and markets, or even companies that are not part of the core business, are gaining momentum. This desire to obtain the predominance and control of technology, trade secrets and intangible values leads to complex trading conditions and innovative deal structures. This facilitates the need to protect and protect confidential information from leakage and to ensure that the outgoing person does not re-exploit his skills, experience and know-how in the near future. Any attempt by the seller to re-enter the same business with his rich experience and know-how and to compete with the buyer can result in a loss to the buyer, and it is therefore necessary to protect against such contingencies.
As a general rule, the objective is to obtain a non-compete clause in the transaction agreement, for which the incumbent requires a specific compensation called the non-competition clause.