New York Court Determines When a Gyrating Ass May Be Taxed

The stripper's pole is a slippery slope, or something like that

What a terrible way to celebrate the release of Magic Mike on DVD/Blu-ray today! A very divided New York Court of Appeals has ruled that lap dances are not art and don't promote culture and are therefore subject to state sales taxes. Via the Associated Press:

Lap dances are taxable because they don't promote culture in a community the way ballet or other artistic endeavors do, New York's highest court concluded Tuesday in a sharply divided ruling.

The court split 4-3, with the dissenting judges saying there's no distinction in state law between "highbrow dance and lowbrow dance," so the case raises "significant constitutional problems."

The lawsuit was filed by Nite Moves in suburban Albany, which was arguing fees for admission to the strip club and for private dances are exempt from sales taxes.

The court majority said taxes apply to many entertainment venues, such as amusement parks and sporting events. It ruled the club has failed to prove it qualifies for the exemption for "dramatic or musical arts performances" that was adopted by the Legislature "with the evident purpose of promoting cultural and artistic performances in local communities."

So to describe the ruling in Channing Tatum terms (which is how all court rulings should be described): Live performances from Step Up would be exempt from sales taxes; live performances from Magic Mike would not.

Judge Robert Smith pointed out in his dissent that the majority ruling here does not actually comply with the wording of the state's legislation on what is and is not exempt from tax. While the majority may dismiss the artfulness of Tatum's thrusting hips, the actual law makes no such distinctions:

[T]he only question in the case is whether the admission charges that the State seeks to tax were paid for dance performances. There is not the slightest doubt that they were. That is proved by the video introduced into evidence before the Tribunal, and the testimony of two witnesses, an executive of petitioner and a dancer, with personal knowledge. The people who paid these admission charges paid to see women dancing. It does not matter if the dance was artistic or crude, boring or erotic. Under New York's Tax Law, a dance is a dance.

Smith worries that highbrow/lowbrow split on what constitutes "dance" ultimately leads to discriminatory application of the law:

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.

You can read the ruling here as a Scribd file.