Income from Self-Employment from the Sale of Antiques

Facts

The appellant, [X.] , is a partner in the collective company [X.] & [Y.] . In 2004, he sold 51 antiques through the auction house [Z.] and achieved a revenue of CHF 57,237.--. The Cantonal Tax Office of Nidwalden recorded this amount as income from self-employment for direct federal tax as well as cantonal and communal taxes 2004, without allowing the deduction of production costs.

The appellant lodged an unsuccessful appeal and complaint with the Administrative Court of the Canton of Nidwalden. Subsequently, he filed a complaint in public law matters with the FSCA and requested that the judgment of the Administrative Court be set aside and his taxable income be determined without the CHF 57,237.--.

Considerations

The FSCA examined the admissibility of the complaint and found that the complaint in public law matters is generally admissible. However, a justification that meets the requirements was lacking, insofar as the complaint was based on the violation of fundamental rights and cantonal law.

The court dealt with the question of whether the revenue from the sale of antiques can be qualified as income from self-employment. It came to the conclusion that the lower courts rightly assumed a profit motive and thus a self-employed (secondary) gainful activity of the appellant.

The court further examined whether the cantonal authorities were right to take the view that the appellant could not deduct any production costs from…