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Lap Dances Are Taxable, New York Court Rules

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ALBANY, N.Y. -- Getting a lap dance isn't the same as taking in a ballet, so an alcohol-free strip club will have to pay the tax man, a New York state court has ruled.

Four Appellate Division justices agreed with a state tax appeals commission's earlier finding that dances onstage or in private rooms at the club Nite Moves in suburban Albany don't qualify for a state tax exemption as "dramatic or musical arts performances."

Nite Moves contested a tax bill of nearly $125,000 plus interest on lap dances and admission fees stemming from a 2005 audit. Its attorney, W. Andrew McCullough said Friday the club has a later, larger bill it is also challenging, and that he would probably appeal the Appellate Division ruling.

McCullough said the impact of the ruling probably won't be widespread since most establishments featuring exotic dancers as entertainment are bars mainly selling alcohol where other tax rules apply.

"We admit the ballet is a little different and maybe a little more finely tuned," McCullough said.

Still, the club tried to bolster its artistic argument with testimony from a cultural anthropologist who has studied exotic dance and visited Nite Moves, and who said the lap dances should be considered choreographed performances.

The court said it agreed with the state Tax Appeals Tribunal's determination that Nite Moves didn't present sufficient proof that it deserves a tax exemption. The court noted that the club's dancers aren't even required to have formal dance training, "and, in lieu thereof, often rely upon videos or suggestions from other dancers to learn their craft."

"It was purely and absolutely a value judgment," McCullough said, citing First Amendment issues about free expression and adult entertainment.

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