By Daniel Wiessner
ALBANY, N.Y., Feb 8 (Reuters) - A New York strip club that
lost a bid to avoid paying taxes on money earned from lap dances
is taking its case to the U.S. Supreme Court, the club's
In a 4-3 decision last year, the Court of Appeals held that performances at Nite Moves, an exotic dance club near Albany,
didn't qualify for a state tax exemption that applies to
dramatic or musical arts performances.
The club had argued that exotic dance fell under the
exemption because it required practice and choreography.
On Thursday, the Court of Appeals denied the club's motion
to reargue the case. Andrew McCullough, the club's attorney,
said in an interview that he would submit paperwork in the next
90 days asking the Supreme Court to hear its case.
The state tax department "is not a dance critic and it
violates the Constitution to allow them to judge the relative
merits of (different forms of) dance," McCullough said.
Nite Moves is trying to fend off a $125,000 tax bill on
admission fees, beverage sales and income from private dances
that it collected between 2002 and 2005.
The case has garnered widespread national media coverage,
including a November segment on "The Colbert Report," a popular
In a strongly worded dissent in the Court of Appeals ruling,
Judge Robert Smith wrote that comparing different types of
dancing was "not the function of a tax collector."
"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," Smith wrote, joined by two colleagues.
McCullough said that Smith's dissent makes a clear case that
the club's treatment by the state was unconstitutional.
The majority panel disagreed, saying it was "not irrational
(for the tax department) to conclude that a club presenting
performances by women gyrating on a pole to music, however
artistic or athletic their practice moves are, was also not a
qualifying performance entitled to exempt status."
A spokesman for the state Department of Taxation & Finance
said Thursday that the agency would review any paperwork filed
with the Supreme Court and declined to comment further.
Litigants may appeal a Court of Appeals decision to the
Supreme Court in cases that directly implicate constitutional
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