Gianna considers her dancing an art form.
The slender 27-year-old has danced since she could walk and was trained in ballet during her youth. When she performs, she relies on every ounce of her strength and dexterity to synchronize her movements to the beat of the music — something no amateur could do with her precision.
“It takes so much work just to do it properly,” she said before a performance Tuesday.
But Gianna, a performer at Nite Moves in Latham, also does something many other professional dancers don’t do on stage: She takes her clothes off. And that is what now separates her form of dancing from what New York considers tax-exempt artistic expression.
Stephen Dick, owner of the strip club, maintains the dances performed by Gianna and others at Nite Moves are protected under the First Amendment. He continues to maintain that taxing door admission and private lap dance fees constitutes a violation of constitutional rights, because his dancers should be exempt from taxes.
“We know unquestionably we’re right,” he said. “There’s no way to read that code and come to any other conclusion.”
Dick petitioned the U.S. Supreme Court in July after achieving limited success with this argument in New York’s court system. On Tuesday, however, the nation’s highest court declined to take up the case, meaning Dick now faces paying about $80,000 in taxes annually on performances at the club.
This includes the standard $11 admission, along with any charge on the variety of private dances customers can request. These range from table-side dances that cost about $2 to private performances ranging up to $75 — all subject to 8 percent sales tax.
“Any dancing done, they want taxed,” Dick said. “Even a dance at the table is an additional charge.”
In his submission to the Supreme Court last summer, Dick argued a tax on freedom of expression — specifically, the right to strip naked and dance provocatively — will inevitably lead to levies on other activities protected under the U.S. Constitution. The petition argued the taxation of exotic dancing is akin to “content-based discrimination” — an unconstitutional practice that provides government officials unlimited discretion to determine and tax on the basis of artistic merit.
State officials disagreed, claiming the erotic dancing didn’t amount to the “dramatic or musical arts performances” ordinarily provided a tax exemption. They claimed Nite Moves’ “adult entertainment charges” are subject to sales tax under two other provisions of the law, regardless of whether the dances qualified as a “dramatic or musical arts performance.”
“A decision by this Court in petitioner’s favor on the First Amendment issue would amount to an advisory opinion because it would not affect the ultimate outcome of this proceeding,” attorneys for the state wrote in a brief submitted to the Supreme Court last month.
A spokesman for the state Attorney General’s Office declined to comment on the matter Tuesday.
The case initially arose after an audit by the state Department of Taxation and Finance concluded door admission charges and private dance sales at Nite Moves were subject to sales tax but no tax was being collected. The audit found the club owed about $124,921 plus interest for proceeds taken between 2001 and 2004.
Nite Moves paid the taxes, but appealed the decision before an administrative law judge in 2009. In making the appeal, the club noted a section of tax code that states a sales tax is imposed on any “admission charge” for the use of any place of amusement in the state, except charges for admission to “dramatic or musical arts performances.”
The club’s evidence of the claim came from a number of submissions to the judge, including a DVD of pole dancing routines, video of two Nite Moves dancers performing and footage from the Miss Nude Capital District contest in 1998, featuring theme performances. The club also presented testimony from Judith Lynne Hanna, a cultural anthropologist and dance expert from the University of Maryland, who argued the performances incorporated “jazz-like, improvisatory movements in routines.”
The administrative law judge sided with Nite Moves, agreeing the dances constituted a form of art. But the state appealed to the Tax Appeals Tribunal, which ultimately overturned the case based on a lack of evidence to prove the club’s assertions.
The state then successfully defended the case in the Appellate Division of state Supreme Court and the Court of Appeals, which narrowly rejected the argument posed by Nite Moves in October 2012. In a 4-3 decision, the state’s highest court ruled the lap dances are taxable because they don’t promote culture; dissenting justices claimed there is no distinction in state law to gauge the difference between dancing and that the case raised “significant constitutional problems.”
Dick’s court odyssey also led him onto national television. He pleaded his case during a segment that aired on Comedy Central’s “The Colbert Report.”
Dick said he won’t abandon his argument, even though he’s now facing a tax liability totalling roughly $630,000 from sales between 2004 to 2009. He plans to again contest the liability before an administrative law judge, with the hope he can argue his case with even more submissions.
“It wasn’t exactly shocking,” he said of the Supreme Court’s inaction. “It was just disappointing. We really believe our case has merits.”
For dancers like Gianna, the court not taking up the case just continues the stigma surrounding erotic dancing. She still believes her dancing is a form of artistic performance, even if the courts disagree.
“It’s telling a lot of people that this form of dancing isn’t important,” she said. “That’s what it’s saying — we’re not dancers, we’re strippers.”