Is lap dancing an art? New York court to decide tax case

DISCUSS

ALBANY, N.Y. — Is nude dancing an art? New York's highest court will consider legal arguments by a strip club on whether it is and deserves a state tax exemption as such.

The case set for oral arguments Wednesday involves Nite Moves, an adult entertainment club in suburban Albany that is contesting a tax bill of more than $124,000 following a 2005 audit.

Tax officials say sales taxes were paid on the club's non-alcoholic drinks but are also owed on admission and so-called "couch sales," where patrons pay for private or lap dances.

Nite Moves claims the dances are exempt under state tax law as "live dramatic or musical arts performances." The exemption also applies to theater or ballet. The club is relying on testimony from a cultural anthropologist who has studied exotic dance and visited Nite Moves.

W. Andrew McCullough, an attorney for Nite Moves, said the impact of the eventual court ruling probably won't be widespread, because most establishments featuring exotic dancers sell alcohol, where other tax rules apply.

An administrative law judge previously agreed with Nite Moves, saying "the fact that the dancers remove all or part of their costume ... does not render such dance routines as something less than choreographed performances."

But the state Tax Appeals Tribunal said the club didn't present sufficient proof that it qualifies for the exemption, and a mid-level court upheld the tribunal ruling last year. The appellate court noted that the club dancers are not required to have any formal dance training and that the anthropologist didn't see any of the dances done in private rooms.

The court typically takes about a month to issue a decision.