High court: Lap dances are taxable

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An Albany strip club has argued that its An Albany strip club has argued that its lap dances should not be taxed because they are a form of art. (Sept. 5, 2012) Photo Credit: Getty Images

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Lap dances at strip clubs aren’t exempt from sales taxes, New York’s highest court ruled Tuesday in a 4-3 decision.

In a case pitting an Albany-area strip club against the state Tax Appeals Tribunal, the Court of Appeals said cover charges and fees for “private dances” are taxable.

The majority of judges said the club’s claim that “dramatic or musical arts performances” were tax-exempt was “irrational.” The Tax Tribunal sought to collect $125,000 in sales taxes from “Nite Moves,” a club in suburban Latham.

“Clearly, it is not irrational for the Tax Tribunal to decline to extend a tax exemption to every act that declares itself a ‘dance performance,’” the majority wrote.

“If ice shows presenting pairs ice dancing performances, with intricately choreographed dance moves precisely arranged to musical compositions, were not viewed by the (state) Legislature as ‘dance’ entitled to 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 tax-exempt status,” the four judges concluded.

Judges Carmen Ciparick, Victoria Graffeo, Eugene Pigott and Theodore Jones comprised the majority.

Notably, the dissenters included two conservative members of the court, Robert Smith and Susan Read, and one of the most liberal, Chief Judge Jonathan Lippman.

The dissenters said that "pole dancing" was "distasteful," but likened it to “other lowbrow forms of entertainment such as baseball games and animal acts” in that the state Legislature never said such performances specifically were taxable. Therefore, they said, the Tribunal had no authority to go after strip clubs.

Like the majority and the Tribunal, I find this particular form of dance unedifying—indeed, I am stuffy enough to find it distasteful," Smith wrote for the dissenters. "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.”


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