Does it matter for tax purposes whether my non-compete payment comes from me or my corporation?
Yes, it can matter quite a bit. Payments for a restrictive covenant like a non-compete are subject to their own specific tax treatment under the Income Tax Act, generally taxed as ordinary income to whoever actually receives the payment, rather than getting the more favourable treatment that applies to a capital gain on shares or goodwill. Whether that payment is structured as coming from the buyer directly to you personally, or routed through your corporation, affects who reports that income and how it interacts with the rest of the deal's allocation.
Because a non-compete payment is part of the overall price being paid for the business, allocating part of the purchase price specifically to the restrictive covenant, rather than folding it entirely into the price for shares or goodwill, shifts some of the total consideration from capital gain treatment into ordinary income treatment — which changes the total tax bill across the parties involved, not just who writes which cheque.
Because there are specific rules and, in some circumstances, elections available around how restrictive covenant amounts are treated, this needs to be worked through deliberately with a tax advisor as part of the broader price allocation, not treated as an incidental clause in the agreement.
Key takeaways
- Restrictive covenant payments are generally taxed as ordinary income, not as a capital gain.
- Whether the payment comes from or to you personally versus your corporation affects who reports it.
- Allocating price specifically to a non-compete shifts some proceeds from capital gain to income treatment.
- Work through this deliberately with a tax advisor as part of the overall price allocation.