A non-compete agreement is a legal contract between two parties, typically an employee and an employer or two companies. The agreement states that the employee or company who signs the agreement will not engage in competing business activities with the other party for a certain period of time.

One aspect of non-compete agreements that often goes overlooked is the potential for a capital gain to be realized upon the sale of a business. If a business has a non-compete agreement with key employees, the agreement can be viewed as an asset of the business. When the business is sold, the non-compete agreement can be transferred to the new owner for a fee, resulting in a capital gain for the seller.

The IRS considers non-compete agreements to be a form of intangible property that can be sold, exchanged, or transferred. The gain from the sale of a non-compete agreement is subject to capital gains tax, which can be either short-term or long-term depending on how long the seller has held the agreement.

It is important to note that the sale of a non-compete agreement must be carefully structured to ensure that it is treated as a capital gain. If the sale is structured as a sale of ordinary income, the seller could be subject to higher tax rates and additional Medicare taxes.

In summary, non-compete agreements can be a valuable asset for businesses, not just in preventing competition but also in providing a potential source of capital gain. However, it is important to work with a qualified tax professional to ensure that the sale of a non-compete agreement is structured correctly to minimize tax liability.