Lap dances at Nite Moves will be taxed just like anything else sold in New York.
Justices with the U.S. Supreme Court declined to take up the freedom of expression argument brought by club owner Stephen Dick today. The nation’s highest court decision essentially ends the long-running legal battle the Colonie strip club owner has waged against the state for more than four years.
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. State officials disagreed, claiming the lap dances offered at Nite Moves didn’t amount to the “dramatic or musical arts performances” provided a tax exemption under state law.
“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 court last month.
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.
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 the state Supreme Court and the Court of Appeals, which narrowly rejected the argument posed by Nite Moves in October 2012. In a split 4-3 decision, the prevailing appeals court justices 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."