


From the majority opinion upholding both the Tax Tribunal and the Appellate Division’s initial decision in the case:

Clearly, it is not irrational for the Tax Tribunal to decline to extend a tax exemption to every act that declares itself a “dance performance.” If ice shows presenting pairs ice dancing performances, with intricately choreographed dance moves precisely arranged to musical compositions, were not viewed by the Legislature as “dance” entitled a tax exemption, surely it was not irrational for the Tax Tribunal to conclude that a club presenting performances by women gyrating on a pole to music, however artistic or athletic their practiced moves are, was also not a qualifying performance entitled to exempt status. To do so would allow the exemption to swallow the general tax since many other forms of entertainment not specifically listed in the regulation will claim their performances contain tax-exempt rehearsed, planned or choreographed activity.

In a dissent, Judge Robert Smith noted that the majority opinion “makes a distinction between highbrow dance and lowbrow dance that is not to be found in the governing statute and raises significant constitutional problems.”

From the dissent, written by Smith and concurred to by Judge Susan Reid and Chief Judge Jonathan Lippman:


… It is undisputed that the dancers worked hard to prepare their acts, and that pole dancing is actually quite difficult, but the Tribunal decided that they were not artists, but mere athletes: “The degree of difficulty is as relevant to a ranking in gymnastics as it is in dance.” The Tribunal seems to have missed the point that “ranking,” either of gymnasts or dancers, is not the function of a tax collector.

Lest you think Smith is trying to curry favor with New York’s pole-dance professionals, he concludes:

Like the majority and the Tribunal, I find this particular form of dance unedifying — indeed, I am stuffy enough to find it distasteful. Perhaps for similar reasons, 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 (see Arkansas Writers’ Project, Inc. v Ragland, 481 US 221, 229-230 [1987]). It is not clear to me why the discrimination that the majority approves in this case stands on any firmer constitutional footing.

Here’s the full decision and dissent:


  1. Publius says:

    A truly sad day in New York Jurisprudence. This will put the proprietor out of business as the assessment is hudnreds of thousands of dollar. More importantly, the court ignored the only expert to testify on the matter, and the plain language of the law. Time to move elsewhere.

  2. Chad9976 says:

    It is absolutely absurd that the state at any point would be deciding what’s art and what is not. Even more dumb that somehow being “art” makes you tax exempt.

  3. Dale Gribble says:

    I am outraged!!!
    Outraged I tell you.
    I am going to leave work and go to the Bunk house to show them my support of thier status as Artists!

  4. J Michael Malec says:

    This decision is clear content-based discrimination. If it were a First Amendment free speech issue, it would be outrageous, but, since it is a tax issue, it’s probably within the police power.

    The court should not delve into what is or is not art. It is up to the legislature to decide what businesses to tax or exempt. The court should have have called on the legislature to clarify its intent.

  5. EriK says:

    Sounds like Judge Smith’s dissent made some excellent points.

    Of course when there is money on the table, so to speak, four justices wanted to grab some for the state.

  6. floydiansllip says:

    If I pay for a movie ticket I get admission to the movie. If I want candy, popcorn and/or a soft drink I need to make a seperate purchase and pay tax on that purchase. Same thing with strip clubs. You pay to enter. A lap dance is a seperate service, and it’s not like making it rain on the dance floor for a non-private dance. It is another service offered by the establishment.

    If you can tax bagels for being sliced, you can tax exotic dancers for dancing on pants.

  7. WNYPlanner says:

    Hardly content based. Anyways, Wall Street is going to be really mad around bonus time.

  8. rolio says:

    This is a sad day in NY on so many levels.

  9. eb says:

    Follow me to Double Visions and pay Our taxes to save the state

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