Though a select few may feel strongly that there is no act more sacred than the lap dance, that select few does not include the appellate division of the New York State Supreme Court.
By a 4-3 majority, the state's highest court, the Court of Appeals, ruled Tuesday that lap dances do not qualify for the same tax exemption as other “dramatic or musical arts performances,” such as a Madonna concert or a Broadway show, the New York Times reported.
The court's ruling stems from a 2005 audit of the Nite Moves strip club in Latham, N.Y. After an investigation, the state demanded $124,921 from unpaid sales taxes on cover charges and “performance fees,” which was construed to mean private dances.
Nite Moves owners had refused to pay the back taxes, claiming the sensual, behind-closed-doors dances were “choreographed performances,” and thus exempt from a sales tax.
Before the court's decision on Tuesday, Nite Moves owners had previously lost in the Appellate Division of the State Supreme Court, which took a similar stance to those of the New York Supreme Court’s justices.
The court's decision wasn’t exactly rendered in unison, however. Judge Robert S. Smith was particularly unnerved by the court’s potentially patrician view of performance.
While Smith acknowledged that the performance tax exemption “assumes that ‘choreography’ includes all ‘dance routines’ — it does not matter what kind of dancing is being done," the justice admitted that he himself was “stuffy enough” to find exotic dancing “distasteful.”
These kind of distinctions, he added, create perplexing and troubling constitutional loopholes.
“Perhaps for similar reasons,” wrote Smith in his dissenting opinion, “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.”
The majority of justices felt that similar to non-tax exempt arenas, such as amusement parks and sports games, lap dances fail to promote "cultural and artistic performances in local communities," thus the dances should be taxed.
In New York state, a sliced bagel can be taxed, but a whole bagel is exempt, and circuses don’t bear the burden of an extra sales tax, while magic shows do.