ALBANY – Even lap dances are now subject to state sales taxes.
The state’s highest court, in a 4-3 decision, ruled that lap dances should be treated like any other form of entertainment, from football games to ice shows, when it comes to taxation.
Erotic dances performed in what the Court of Appeals called “private rooms” at strip clubs do not meet the standard for tax exemption granted by the State Legislature to certain “dramatic or musical arts performances.”
The court upheld the decision by a state tax tribunal that imposed the tax on an Albany-area strip club and rejected the club’s contention that “the exotic stage and couch dances that are featured at the premises qualify as musical arts performances.” The club was seeking to have admission and lap dances exempt from state taxes.
The court said that it is “not irrational” for the tax tribunal to reject tax-exempt claims by businesses that declare their offerings to be “dance” performances.
“If ice shows presenting pairs ice-dancing performance, with intricately choreographed dance moves precisely arranged to musical compositions, were not viewed by the Legislature as ‘dance’ entitled a tax exemption, surely it was not irrational for the Tax Tribunal to conclude that 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,” the majority of judges wrote in a decision released Tuesday.
But the three dissenting judges said the majority decision “makes a distinction between highbrow dance and lowbrow dance that is not to be found in the governing statute and raises significant constitutional problems.”
Judge Robert S. Smith, who wrote the dissenting opinion, said patrons paid to see a dance that should not be subject to taxation.
“It does not matter if the dance was artistic or crude, boring or erotic. Under New York’s tax law, a dance is a dance,” the judge wrote.
If the Legislature meant to tax pole or lap dances, Smith wrote, it could have specifically said so in statute. But it did not.
In an unusually written opinion given the often highly legal language contained in Court of Appeals decisions, Smith made clear that while he finds such kinds of erotic dancing “distasteful” and that he reads the New Yorker magazine and not Hustler, they are comparable on another level.
“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,’ ” the judge wrote.
Asked about the court’s ruling, Gov. Andrew M. Cuomo avoided the long responses he can sometimes give to questions. “Is that bad news for you?” Cuomo said to a reporter, before quickly adding, “It doesn’t matter to me.”