New York strip club loses bid to have lap dances legally defined as art

A New York appeals court has ruled that lap dances are not an artistic performance and are therefore not exempt from state tax.

A 4-3 ruling by New York’s top court determined that Nite Moves strip club must pay a $124,000 bill for not paying proper sales tax on club admission and private dances. The Albany strip club claimed they did not owe the state tax because the strip club is “a place of amusement featuring dramatic or musical arts performances”.

In the majority opinion, judges said it would be irrational for the tax tribunal to exempt every act that is considered a dance performance.

If ice shows presenting pairs ice dancing performances, with intricately choreographed dance moves precisely arranged to musical compositions, were not viewed by the Legislature as “dance” entitled a tax exemption, surely it was not irrational for the Tax Tribunal to conclude that a club presenting performances by 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.

Judge Robert Smith said in a dissent that the majority opinion “raises significant constitutional problems” because it makes a distinction between lowbrow and highbrow dance.

“It does not matter if the dance was artistic or crude, boring or erotic,” said Smith. “Under New York’s tax law, a dance is a dance.”

Smith also clarified that his dissent is for constitutional reasons.

“Like the majority and the Tribunal, I find this particular form of dance unedifying – indeed, I am stuffy enough to find it distasteful,” said Smith. “Perhaps for similar reasons, I do not read Hustler magazine; I would rather read the New Yorker.”

A 2005 audit by by the state department of taxation and finance determined that Nite Moves must pay $124,000. The strip club then took the case to court, arguing the dances should be tax-exempt because some of the dancers are trained in ballet, jazz and gymnastics.

In the petitioner’s brief, Nite Moves’ lawyer W Andrew McCullough also argued that the strip club is comparable to a theater because it has dressing rooms, ushers and a wait staff.

Nite Moves is different from most strip clubs because it does not sell alcoholic drinks and therefore is held to different standards of tax-exemption.

An administrative court judge initially ruled in favor of Nite Moves and said: “The fact that the dancers remove all or part of their costume … simply does not render such dance routines as something less than choreographed performances.”

A New York tax appeal tribunal opposed the ruling saying their was not enough proof that the strip club should be exempt from taxes. The New York court of appeals agreed to hear the case last year.