Bluefield Daily Telegraph, Bluefield, WV

National and World

September 5, 2012

NY court to decide if lap dance is tax-exempt art

ALBANY, N.Y. (AP) — Nude lap dances aren't likely to be confused with "Swan Lake." But a New York strip club says they are an art form, too, and should be exempt from state taxes.

So far, the state tax department and an appeals court disagree and want the Nite Moves club in Albany to pay $124,000 in back taxes.

New York's highest court was set to hear arguments in the dispute Wednesday in what is surely one of the racier tax cases ever to reach the Court of Appeals.

Nite Moves claims lap 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.

"It's definitely a form of art. It's live entertainment," a dancer said Wednesday afternoon at the club, where there was only one customer. She declined to give her name, saying she has another, unrelated job. "Some girls are up there practicing for hours when nobody's in here."

Nite Moves does not have a liquor license. W. Andrew McCullough, an attorney for Nite Moves, said the effect of the eventual court ruling probably won't be widespread because most establishments featuring exotic dancers sell alcohol, and other tax rules apply to those establishments.

An administrative law judge previously agreed with Nite Moves, saying: "The fact that the dancers remove all or part of their costume ... simply 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 that ruling last year.

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