In the context of a sale of 100% of the shares of a private corporation by an executive shareholder to an arm's length purchaser, can the CRA provide us with the criteria it intends to use to determine the value of a covenant not to solicit the corporation's clients or of a covenant not to solicit employees of the corporation to change employment? CRA responded:
[T]he conditions that are provided for in a commercial transaction must generally be satisfied in order for the transaction to proceed. Where some of those conditions are not satisfied, it is possible that the purchaser may withdraw from the purchase process. If a restrictive covenant had a value, that value would normally be measured by the reduction in the income of the business sold if the vendor did not comply with the terms of the covenant. …
[K]eeping in mind that what is being valued are conditions of a sale that are essential to the closing of the sale, the various elements that would have an impact on the income of the business sold must be evaluated in light of each individual situation.