Does a private lap dance or pole dancing constitute a “choreographic performance?” This was the issue the highest court of the State of New York was recently faced with in In the Matter of 677 New Loudon Corp. v. State of New York Tax Appeals. The case arose after the operator of an adult entertainment club in Latham, New York, contended that the door admission charges and private dance performance fees it collects from its patrons are exempt from state sales and use taxes as an admission charge to a place of entertainment.
While there is a specific exemption in the Tax Law that excludes from taxation admission charges for “dramatic or musical arts performances,” the fees must be admission charges for choreographed performances such as admission charges for a choreographed dance show, the opera, or a concert.
According to the Court, nude lap dances and pole dances are another form of amusement like a sporting event and do not qualify for the exemption: “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.”
However, the dissent presented a lengthy and compelling argument in favor of the exemption, noting that the Tax Law does not make “a distinction between highbrow dance and lowbrow dance.” The dissent further pointed out that “[i]t does not matter if the dance was artistic or crude, boring or erotic. Under New York’s tax law, a dance is a dance.”
In conclusion the dissent explained: “I do not read Hustler Magazine; I 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.’”
Given the potential unconstitutional discrimination as to what constitutes a cultural and artistic performance, this case may even dance its way into the U.S. Supreme Court for further ruling.
This article is for informational purposes only and is not intended to give legal advice. Please contact the author for legal inquiries at gabay@gabaybowler.com or (212)941-5025.
