不竞争是逃税

Rebecca N. Morrow
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引用次数: 3

摘要

阿尔·卡彭(Al Capone)以吹嘘自己的犯罪帝国而闻名:“有人称之为走私。有人称之为敲诈勒索。我称之为生意。”财政部探员弗兰克·威尔逊和检察官乔治·约翰逊把卡彭关进了监狱,不是通过质疑他的性格特征、追究谋杀、袭击或RICO指控,而是通过接受并执行其税收含义。不管其合法性如何,卡彭的生意都是盈利的,而且卡彭没有为纳税而报告他们的利润。一个简单的基本税法的应用实现了其他法律途径无法实现的目标,并将卡彭送到了恶魔岛。诀窍在于看一下税收问题。政策制定者应该使用类似的方法来限制过度、剥削性和反竞争地使用就业竞业禁止协议。目前,近五分之一(或三千万)的美国工人受到就业竞业禁止协议的约束。雇主们声称,他们通过更高的工资、更大的加薪和/或更丰厚的奖金,充分补偿了受竞业禁止限制的员工。政策制定者对这种说法嗤之以鼻,并利用合同法来攻击他们。不幸的是,就业竞业禁止就像阿尔·卡彭(Al Capone)一样,尽管法律努力加以限制,但它们仍然蓬勃发展。最近,美国历史上最大规模的竞业禁止研究自相矛盾地发现,竞业禁止的普遍程度并不受其可执行性的影响。在像加州这样拒绝执行雇佣不竞争规定的州,这种情况和在支持雇佣不竞争规定的州一样普遍。事实证明,合同法在应对竞业禁止条款的普遍、扩大和破坏性使用方面能力不足。这篇文章是第一个转移焦点的文章,并认为雇主目前使用的雇佣不竞争行为构成了逃税,应该受到打击。如果雇主通过补偿来支付雇员的竞业禁止,那么在雇主自己的账户中,这种补偿就不纯粹是与直接利益相关的费用;相反,它是一项与未来福利相关的支出——雇主在支付工资后将享受多年的福利。因此,美国国税局应该停止允许雇主立即全额扣除他们支付给受竞业禁止约束的雇员的薪酬,而应该要求将总薪酬的适当部分分配给竞业禁止,并在雇佣结束时开始的限制期间内摊销。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Noncompetes as Tax Evasion
Al Capone famously boasted of his criminal empire: “Some call it bootlegging. Some call it racketeering. I call it a business.” Treasury Agent Frank Wilson and Prosecutor George Johnson put Capone behind bars not by disputing his characterization and pursuing murder or assault or RICO charges, but by accepting it and enforcing its tax implications. Irrespective of their legality, Capone’s businesses were profitable, and Capone had not reported their profits for tax purposes. A simple application of bedrock tax law achieved what other legal routes failed to achieve and sent Capone to Alcatraz. The trick was to see the tax argument. Policymakers should use a similar approach to curtail the excessive, exploitative, and anticompetitive use of employment noncompete agreements. Currently, nearly one in five (or thirty million) American workers is bound by an employment noncompete. Employers claim that they adequately compensate employees for noncompete restrictions with higher wages, bigger raises, and/or more generous bonuses. Policymakers scoff at this claim and use contract law to attack them. Unfortunately, employment noncompetes are like Al Capone in that they have flourished despite the law’s efforts to restrain them. Recently, the largest study of noncompetes in U.S. history paradoxically found that their prevalence is unaffected by their enforceability. In states like California that refuse to enforce employment noncompetes, they are as common as in states that uphold them. Contract law has proved ill-equipped to respond to the pervasive, expanding, and damaging use of noncompetes. This Article is the first to shift the focus and to argue that employment noncompetes, as employers currently use them, constitute tax evasion and should be attacked as such. If employers pay employees for noncompetes through compensation, then by employers’ own account, this compensation is not purely an expense associated with immediate benefits; rather, it is an expenditure associated with future benefits — benefits that the employer will enjoy years after payment. Thus, the IRS should stop allowing employers to fully immediately deduct the compensation they pay to employees subject to noncompetes and instead should require that an adequate portion of total compensation be allocated to the noncompete and amortized over the restricted period, beginning when employment ends.
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