ALBANY, N.Y. -- New York's high court hears arguments Wednesday about whether exotic dancing qualifies as art and should be exempt from state sales tax.
Nite Moves, an adult entertainment club near Albany, will argue before the state Court of Appeals that the club's exotic dancers are providing "dramatic or musical arts performances," which under state law are exempt from taxes.
The club is contesting the outcome of a 2005 audit in which the state Division of Taxation found that admission changes and "couch sales" -- fees that patrons pay for private dances -- should be taxed. The taxation division ruled Nite Moves owed nearly $125,000 in taxes plus interest for December 2002 to August 2005.
Nite Moves is relying largely on the expert testimony of a cultural anthropologist who specializes in exotic dance. She has testified that "the presentations at Nite Moves are unequivocally live dramatic choreographic performances."
An administrative law judge ruled in Nite Moves' favor, 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."
The Tax Appeals Tribunal reversed the ruling and reinstated the tax assessment, arguing that the expert's view of choreographed performance was "too broad." A state appeals court agreed with the tribunal's ruling.
Nite Moves argued that the tribunal's ruling "relied on legal error."
"Nude dancing is protected expression and not subject to a discriminatory tax," the club argues.
By JESSICA BAKEMAN
Gannett Albany (N.Y.) Bureau