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Pole Dancing Demands Tax Exemption
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Though under New York law “dramatic or musical arts performances” may not be taxed, exotic dances do not qualify for such exemption. On Wednesday, Nite Moves, an exotic dance club near Albany argued to the Court of Appeals that the $ 125,000 bill slapped on it by the state tax department was unfair as pole dancing and lap dances should qualify as tax-exempt artistic performances.

Andrew McCullough, who is representing the club, told the court, “If you saw what these dancers do, you’d be saying, ‘it’s not the Bolshoi, but it’s good.” However, the state Tax Department holds, since exotic dances are not strictly choreographed in predefined formats; they do not qualify for exemption.

Arguing on behalf of the state, the Assistant Solicitor General Robert Godfarb minced neither his words nor his opinions while declaring, “If the women kept their clothes on, no one would be coming to this bar for the dance performances.”

  
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Hmm, what if that was so? Is the association of nudity automatically against the evaluation of a performance as an art form? Would the best paintings of the greatest artists made through the centuries of women in nude cease to be considered as art then? As far as the history of art goes, the woman form in nude by itself is an object of the most passionate art – so what’s special even if the women did not keep their clothes on? Cannot nudity and art go together?

In fact, that’s what an administrative law judge held in the case in 2009. The judge said that the mere fact of Nite Moves’ dancers removing their clothing “simply does not render such dance routines as something less than choreographed performances.”

The state moved in appeal holding it was not artistic performance and definitely not qualified for tax exemption unless “women kept their clothes on.” And in 2010, the state Tax Appeals Tribunal reversed the decision of the administrative judge and held the state was right in disqualifying pole dancing from being held as artistic performance. In its decision, the Tax Appeals Tribunal focused on the point that the club’s dancers are not formally trained in something called pole dancing, and hence the performances could not be “artistic.”

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The Court of Appeals is however, is being more reasonable on the issue this time. Chief Judge Jonathan Lippman observed that the argument of the state seemed to exclude any improvisational dance from tax exemption, even when it is clearly an artistic performance. Judge Susan Read noted in support that even ballet dancers often improvised on their moves and would fail the test of strict choreographing.

On the other hand, Judge Eugene Pigott focused pungently on the culture of the club administration and said the club “doesn’t hire these people to be dancers,” but the club “gives them a pole and a stage and says, ‘give me 25 bucks and you go what you do.’”



The decision of the court is expected in the fall.

The case is the Matter of 677 New Loudon Corporation v. Tax Appeals Tribunal of the State of New York, New York State Court of Appeals, No. 157.



 

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