In an ongoing battle to prove that taking your clothes off for money is not only a dramatic, artistic performance but one that should not be subject to the state rules of revenue that apply to far less artistic venues like amusement parks, Albany strip club Nite Moves has lost its appeal in New York's highest court today. This is a huge blow to the lovely ladies out there who really do put their all into the art, regardless of whether or not they do so fully clothed.
The divided 4-3 ruling determined that lap dances are taxable because they aren't as community-enrinching as, say, ballet – although any young girl subjected to a performance of the Nutcracker on a school field trip and overcome with feelings her pre-teen brain can't quite process may argue otherwise.
Dissenting judges argued that there is nothing specific in state law that actually distinguishes highbrow and lowbrow dance, so to say strippers don't promote community culture and the arts is like saying Going Concern doesn't add to the rich diversity of American media. Oh wait…
The majority (Judges Carmen Beauchamp Ciparick, Victoria Graffeo, Eugene Pigott Jr. and Theodore Jones Jr.) wrote:
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. To do so would allow the exemption to swallow the general tax.
OK who slipped swallow in there? That's just offensive. It's one thing to question the fine work of these talented women but to insinuate that any swallowing will be going on is just unnecessary and, frankly, way off since we all know that kind of stuff never happens at strip clubs, private room or not, amiright?
The dissenting judges may have made up for that poorly-veiled jab with this logical observation which so astutely points out that as the law is currently written, whether tits are involved in the dance or not, it's still a dance:
The people who paid these admission charges paid to see women dancing. It does not matter if the dance was artistic or crude, boring or erotic. Under New York’s Tax Law, a dance is a dance.
Tell that to anyone who has been to one of those awful clubs along the freeway where the girls are too tranqued out to move. Anyhoo…
"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," Judge Robert Smith wrote.
Smith admitted to being "stuffy enough to find it distasteful" but said that it would be unconstitutional to discriminate on a business solely based on just how stuffy he is:
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. It is not clear to me why the discrimination that the majority approves in this case stands on any firmer constitutional footing.
Sorry, girls, the New Yorker wins today. Even though we know it's entirely acceptable in our society to read both.
Nite Moves was originally assessed $124,000 in tax due, which is a hell of a lot of lap dances for those of you doing the math.
New York Judges at Opposite Poles Over Tax Treatment of Nude Dancing [ATL]