NEW YORK, June 10 (Reuters) - A private lap dance is not tax
exempt, a New York court has ruled after a gentleman's club
near the state capital of Albany claimed the service was a tax
free "dramatic or musical art performance."
In New York state a sales tax must be paid on admission to
or for the use of any place of amusement except for dramatic or
musical arts performances.
Nite Moves of Latham, New York, owned by 677 Loudon
Corporation, has been fighting a 2005 audit by the New York
Division of Taxation, which found that the club owed nearly
$125,000 in sales tax on door admission charges and private lap
But the New York State Supreme Court Appellate Division
ruled on Thursday that the club had not provided enough
evidence to support its argument that lap dances were a
dramatic or musical art performance.
"In short, petitioner was denied the requested relief due
not to the nature of its business but, rather, because of the
inadequacy of its proof," a five judge panel ruled.
Nite Moves lawyer, Andrew McCullough, said the company plans
to appeal the decision to the New York Court of Appeals.
"We brought in the foremost expert in the field," McCullough
said. "She is the one in this country who has made a complete
and detailed study of the art of exotic dance and if they are
not going to believe her I don't know who you believe."
According to the New York State Supreme Court ruling, the
expert had found that "the presentations at Nite Moves are
unequivocally live dramatic choreographic performances" and the
private dances used "similar kinds of movements" as performed
on stage and also qualified as choreographed performances.
But the judges wrote that the expert had not seen any
private dances at Nite Moves and had based her opinion on
private dances seen at other clubs and that a Nite Moves DVD
submitted as evidence did not include private dance footage.
The case is: 677 New Loudon Corporation v. State of New
York Tax Appeals Tribunal, Supreme Court Appellate Divsion (3rd
Judicial Department), No. 509464.
For the night club: Andrew McCullough.
For the state: Robert Goldfarb.
(Reporting by Michelle Nichols)