Taxing Dancers

David Paulin
Nite Moves, a strip club in the Albany, New York, area, has waged a legal battle since 2005 against the state's Department of Taxation and Finance over whether its private "lap dances" ought to be exempt from sales tax -- just like ballet performances and Broadway shows are, a status intended by the legislature to promote cultural and artistic performances.

On Tuesday, New York's highest court finally weighed into the legal row, narrowly ruling that lap dances are indeed taxable because, among other reasons, they don't qualify as "choreographed performances" as do Broadway shows and ballet performances. The Court of Appeals, furthermore, noted in its 4-3 decision that "women gyrating on a pole to music, however artistic or athletic their practiced moves are, was also not a qualifying performance entitled to exempt status." (You can read the entire decision, here.) 

The court's majority was divided between two Republicans and two Democrats, and the dissenting judges included two Republicans and one Democrat - so it seems that political ideology wasn't a factor in this amusing legal skirmish.

Judge Robert S. Smith, a Republican, penned an amusing and perceptive dissenting opinion that criticized the majority for making "a distinction between highbrow dance and lowbrow dance that is not to be found in the governing statute and raises significant constitutional problems."

"Like the majority...I find this particular form of dance unedifying -- indeed, I am stuffy enough to find it distasteful," he wrote. "Perhaps for similar reasons, I do not read Hustler magazine; I would rather read the New Yorker. I would be appalled, however, if the State were to exact from Hustler a tax that the New Yorker did not have to pay, on the ground that what appears in Hustler is insufficiently 'cultural and artistic.' That sort of discrimination on the basis of content would surely be unconstitutional...It is not clear to me why the discrimination that the majority approves in this case stands on any firmer constitutional footing."  

As a result of the ruling, Nite Moves reportedly could be liable for more than $500,000 in sales tax. The club's lawyer, W. Andrew McCullough, told the New York Times that he will probably ask the U.S. Supreme Court to hear the case.

Nite Moves, a strip club in the Albany, New York, area, has waged a legal battle since 2005 against the state's Department of Taxation and Finance over whether its private "lap dances" ought to be exempt from sales tax -- just like ballet performances and Broadway shows are, a status intended by the legislature to promote cultural and artistic performances.

On Tuesday, New York's highest court finally weighed into the legal row, narrowly ruling that lap dances are indeed taxable because, among other reasons, they don't qualify as "choreographed performances" as do Broadway shows and ballet performances. The Court of Appeals, furthermore, noted in its 4-3 decision that "women gyrating on a pole to music, however artistic or athletic their practiced moves are, was also not a qualifying performance entitled to exempt status." (You can read the entire decision, here.) 

The court's majority was divided between two Republicans and two Democrats, and the dissenting judges included two Republicans and one Democrat - so it seems that political ideology wasn't a factor in this amusing legal skirmish.

Judge Robert S. Smith, a Republican, penned an amusing and perceptive dissenting opinion that criticized the majority for making "a distinction between highbrow dance and lowbrow dance that is not to be found in the governing statute and raises significant constitutional problems."

"Like the majority...I find this particular form of dance unedifying -- indeed, I am stuffy enough to find it distasteful," he wrote. "Perhaps for similar reasons, I do not read Hustler magazine; I would rather read the New Yorker. I would be appalled, however, if the State were to exact from Hustler a tax that the New Yorker did not have to pay, on the ground that what appears in Hustler is insufficiently 'cultural and artistic.' That sort of discrimination on the basis of content would surely be unconstitutional...It is not clear to me why the discrimination that the majority approves in this case stands on any firmer constitutional footing."  

As a result of the ruling, Nite Moves reportedly could be liable for more than $500,000 in sales tax. The club's lawyer, W. Andrew McCullough, told the New York Times that he will probably ask the U.S. Supreme Court to hear the case.