Strip-Club Fees Aren't Tax Exempt, N.Y. Top Court Rules
By Chris Dolmetsch and Freeman Klopott – Oct 23, 2012 12:23 PM ET
A New York strip club can’t claim a tax exemption for entrance and performance fees on the grounds that it’s presenting “musical arts performances,” the state’s highest court ruled.
The New York Court of Appeals in Albany today upheld a lower court’s ruling that Nite Moves, an adult “juice bar” in Latham, New York, didn’t prove its stage and couch dances merited a state arts exemption.
“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 Court of Appeals said in a 4-3 decision.
While the state imposes a sales tax on any admission charge above 10 cents for the use of any “place of amusement,” the legislature created an exemption for “dramatic or musical arts performances,” according to the ruling.
Nite Moves, which calls itself an “upscale non-alcoholic juice bar,” had argued that lawmakers meant to give the adult- entertainment business a tax break because its performances qualify under the exemption, according to the ruling.
The club, which was required to show that its fees were admission charges for choreographed dance routines, failed to prove that performances in private rooms qualified for the exemption, the Court of Appeals said in its ruling.
The state’s Tax Appeal Tribunal discredited an expert presented by the club who said the performances were choreographed, finding that her testimony was compromised by her opinion that private dances were the same as those on the main stage although she didn’t observe them or have personal knowledge, according to the ruling.
The Tax Appeals Tribunal is a panel of three commissioners appointed by the governor that heads the state’s Division of Tax Appeals, which was created by the legislature in 1986 to resolve tax and licensing disputes, according to its website.
Court of Appeals Judge Robert S. Smith disagreed with the majority, saying the ruling of the Tax Appeals Tribunal “makes 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 and the tribunal, I find this particular form of dance unedifying — indeed, I am stuffy enough to find it distasteful,” Smith wrote in his dissent. “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.’”
The Court of Appeals said qualifying the dances as artistic performances would “allow the exemption to swallow the general tax” since other forms of entertainment not specified by the legislature would ask to be spared from the levy.
“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,” the majority wrote.
Andrew McCullough, a Utah-based attorney representing Nite Moves, didn’t immediately respond to a phone call seeking comment on the ruling.
The case is 677 New Loudon Corp. v. New York Tax Appeals Tribunal, 157, New York Court of Appeals (Albany).
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