What’s the difference between a stripper and a ballet dancer? According to the New York State Court of Appeals, one is subject to sales tax on her performance and the other is not.
In a 4-to-3 decision last October, the court ruled that lap dances at clubs or bars are not eligible for the sales tax exemption enjoyed by venues that provide “dramatic or musical arts performances.” Responding to a challenge by a bar in Latham, New York, the court concluded that strippers’ dances do not qualify as “choreographed performances.”
Dissenting Judge Robert Smith objected to the idea that a tax exemption should be based on the cultural quality of a performance. “The only question in the case is whether the admission charges that the State seeks to tax were paid for dance performances,” he wrote. “There is not the slightest doubt that they were.” Smith wondered where content-based regulatory discrimination could lead, saying he would be “appalled…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.”