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from www.courthousenews.com – – Strip club dances are not “cultural and artistic” enough to qualify for a state tax break, New York’s high court ruled.

The New York Court of Appeals ruled 4-3 that the admission fees and private dance fees of Nite Moves, an adult “juice bar” in Latham, are not tax exempt.

State law allows New York to tax admission fees to “any place of amusement,” including sporting events, zoos and ice shows, but grants an exception for “dramatic or musical arts performances.”

Nite Moves owner New Loudon Corp. argued that its exotic stage and private dances qualify as musical arts performances under this exemption.

But the appellate majority disagreed, upholding the Tax Appeals Tribunal’s ruling against the strip club.

“[S]urely 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 state high court ruled.

“To do so would allow the exemption to swallow the general tax since many other forms of entertainment not specifically listed in the regulation will claim their performances contain tax-exempt rehearsed, planned or choreographed activity.”

In his dissenting opinion, Judge Robert Smith said the majority’s view “makes a distinction between highbrow dance and lowbrow dance that is not found in the government statute and raises significant constitutional problems.”

“Like the majority and the tribunal, I find this particular form of dance unedifying — indeed, I am stuffy enough to find it distasteful,” Smith admitted.

“Perhaps for similar reasons, I do not read Hustler magazine; I would rather read the New Yorker. 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.’

“That sort of discrimination on the basis of content would surely be unconstitutional.”

Judges Carmen Ciparick, Victoria Graffeo, Eugene Pigott and Theodore Jones comprised the majority. Chief Judge Jonathan Lippman and Judge Susan Read joined Smith’s dissent.