NY top court: lap dance isn't art

ALBANY, N.Y. (AP) - Lap dances are taxable because they don't promote culture in a community the way ballet or other artistic endeavors do, New York's highest court concluded Tuesday in a sharply divided ruling.

The court split 4-3, with the dissenting judges saying there's no distinction in state law between "highbrow dance and lowbrow dance," so the case raises "significant constitutional problems."

The lawsuit was filed by Nite Moves in suburban Albany, which was arguing fees for admission to the strip club and for private dances are exempt from sales taxes.

The court majority said taxes apply to many entertainment venues, such as amusement parks and sporting events. It ruled the club has failed to prove it qualifies for the exemption for "dramatic or musical arts performances" that was adopted by the Legislature "with the evident purpose of promoting cultural and artistic performances in local communities."

The majority reached similar conclusions about admission fees to watch dances done onstage around a pole, as well as for lap dances or private dances.

W. Anderson McCullough, attorney for the club, said he and his client were bitterly disappointed by the judges' ruling.

"We thought they were listening, and some of them were," he said.

If ice shows with intricately choreographed ice-dancing routines to music haven't been regarded by lawmakers as qualifying, then it was "surely ... not irrational" for the 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," wrote Judges Carmen Beauchamp Ciparick, Victoria Graffeo, Eugene Pigott Jr. and Theodore Jones Jr.

In the dissent, Judge Robert Smith wrote that it was a question of what the law and regulations actually say. The law defines a "dramatic or musical arts admission charge" for "a live dramatic, choreographic or musical performance," he noted. Choreography means dance, and clearly the women at Nite Moves dance, he wrote.

"The majority implies that since the Legislature did not exclude from the entertainment tax other lowbrow forms of entertainment, such as baseball games and animal acts ... it would not have wanted to exclude pole dancing; but the issue is not what the Legislature would have wanted to do, but what it did," Smith wrote. Chief Judge Jonathan Lippman and Judge Susan Read agreed.

Smith added that while he finds this sort of dancing "unedifying — indeed, I am stuffy enough to find it distasteful," discriminating on the basis of content such as imposing a tax on Hustler magazine and giving the New Yorker an exemption "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."

The New York State Department of Taxation and Finance has said all along the exemption didn't qualify in this situation, spokesman Cary Ziter said. "We're pleased with this decision, because it gives similar businesses clear guidance on the issue of sales tax when it comes to live exotic dance establishments."

Nite Moves was originally assessed $124,000 in sales tax due plus interest, Ziter said. The department was unaware of similar cases working their way through the courts, he said.

McCullough said he and his client still need to look at some alternatives, including whether to petition the U.S. Supreme Court and whether they can present better proof to the tax tribunal that the performances should qualify for exemptions.