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New York court reject Utah lawyer's strip-club argument
This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

A New York strip club can't claim a tax exemption on entrance and performance fees on the grounds that it presents "musical arts performances," the state's highest court ruled.

The New York Court of Appeals in Albany this week upheld a lower court's ruling that Nite Moves, an adult "juice bar" in Latham, N.Y., didn't prove to tax authorities that its stage and couch dances merited the exemption granted to artistic performances.

"It is not irrational for the tax tribunal to decline to extend a tax exemption to every act that declares itself a 'dance performance,'" the Court of Appeals said in a 4-3 decision.

While the state imposes a sales tax on any admission charge greater than 10 cents for the use of a "place of amusement," the Legislature created an exemption for "dramatic or musical arts performances," according to the ruling.

Nite Moves, which calls itself an "upscale non-alcoholic juice bar," argued its performances entitled the adult- entertainment business to the exemption, according to the ruling.

The club, which was required to show that its fees were admission charges for choreographed dance routines, failed to prove that performances on either the main stage or in private rooms qualified for the tax break, the Court of Appeals said.

Court of Appeals Judge Robert S. Smith disagreed with the majority, saying the tribunal's ruling "makes a distinction between highbrow dance and lowbrow dance that is not to be found in the governing statute and raises significant constitutional problems."

Andrew McCullough, a Utah-based attorney representing Nite Moves, told the Associated Press that he and his clients are disappointed with the ruling and are considering alternatives that include a petition to the U.S. Supreme Court. McCullough said in an interview with The Tribune that the decision essentially makes the state of New York a dance critic.

"It would be different if the people on the tax tribunal were dance critics. They're not," he said.

Another audit is coming up for the club for almost triple the amount of money involved in this case, McCullough said. The tribunal said it would not be impossible for the club to still convince them that the club merits the exemption, although it failed this time, McCullough said.

"We're not ready to write any more checks," he said.

The club had appealed an assessment of $124,000 in sales tax plus interest, said Cary B. Ziter, a spokesman for the New York State Department of Taxation and Finance, in a telephone interview.

"We're pleased with this decision," Ziter said in a statement, "because it gives similar business clear guidance on the issue of sales tax when it comes to live exotic dance establishments."

Courts • Utah attorney represented club in challenge to tax law.
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