The Tribune Democrat, Johnstown, PA

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September 6, 2012

NY court weighs if lap dance is tax-exempt art

ALBANY, N.Y. — No one would confuse the Nite Moves strip club with the Bolshoi Ballet, but what the lap dancers do there is art and entitled to the same tax exemption other performances enjoy, a lawyer argued in what was surely one of the racier tax cases ever to go before New York's highest court.

W. Andrew McCullough, an attorney for the suburban Albany strip joint, told the Court of Appeals on Wednesday that admission fees and lap dances at the club should be freed of state sales taxes under an exemption that applies to "dramatic or musical arts performances."

He said that lap dancing is an art form and that, in any case, the state is not qualified to make such determinations, and that making such distinctions would be a violation of the constitutional right to freedom of expression.

A lawyer for the state rejected that analysis, and authorities are demanding about $400,000 in back taxes from the club.

A ruling is expected next month, with possible consequences for the estimated 150 to 200 adult nightclubs in the state.

During Wednesday's arguments from the club's lawyer, a skeptical Judge Eugene Pigott Jr. said the women are hired untrained and simply "do what they do."

"We need to get past the idea that somehow this is the Bolshoi," Pigott said.

McCullough acknowledged that, but added: "What we're saying is the state of New York doesn't get to be a dance critic."

He presented testimony from a cultural anthropologist who visited the club and concluded that the exotic dancing there qualifies as an art form.

Robert Goldfarb, an attorney for the state, said that nobody would visit the club if the dancers didn't remove their clothes. He also argued that the exemption applies to "choreographed" performances, and what the Nite Moves dancers do doesn't qualify.

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