Lap dances are not art and therefore not eligible for tax exempt status. So sayeth the New York State Court of Appeals. But only by an embarrassingly thin 4-3 margin.
The narrow win for common sense raises interesting questions. What on earth did the three dissenting judges base their conclusion that naked women swinging on a pole or grinding away in a sweaty patron’s lap deserve the same consideration as the latest production of Swan Lake? What classes did they skip or sleep through in law school? And what on earth is on the New York bar exam?
Representing our post-everything world, the three Solomon manqués argued that state laws make no distinction between “highbrow dance and lowbrow dance,” apparently unaware that the people of New York pay them to make such distinctions. Demonstrating an almost Obama-esque feel for the non-sequitur, Dissenting Judge Robert Smith said that while he would rather read the New Yorker than Hustler, he thought the majority was being too “prudish.” Closer to earth, the justices in their majority decision wrote: “Surely it was not irrational to conclude that a club presenting performances by women gyrating on a poles to music, however artistic or athletic their practiced moves are… was not a qualifying performance entitled to exempt status.”
This judicial silliness began when a suburban Albany small business called Night Moves sued, arguing that if the local ballet, symphony orchestra, even Broadway shows can get a pass on state sales taxes, then the lithesome Ladies who animate Night Moves should too. The decision is a blow to the jiggle industry in general and to Nite Moves specifically, which the Daily News reports is on the hook for $400,000 in back taxes.
We may not have seen the end of this (so to speak). “For them to make the interpretation that exotic dance does not have the same artistic value or expression as other forms of dance is absolutely incorrect,” said Jeff Levy, executive director of something called the Association of Club Executives in New York. W. Andrew McCullough, a “First Amendment lawyer” who represented Nite Moves, has said he is considering taking this vital matter to federal court. We await developments.
It’s always comforting when common sense wins one. But when the margin is so narrow, it’s worrisome. Small businesses need a break. But not this one.
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