By Daniel Wiessner
ALBANY, New York (Reuters) - Pole dancers might be athletic and artistic but their performances don't qualify for tax-exempt status under New York law, a state court ruled on Tuesday.
The owners of Nite Moves, an exotic dance club near Albany, New York, had sought to have pole dancing and private lap dances qualified as tax exempt since revenue collected from "dramatic or musical arts performances" is not taxable under state law.
But the Court of Appeals, the state's highest court, decided against the club in a 4-3 ruling handed down on Tuesday.
"Surely it was not irrational ... 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," the majority wrote in an unsigned memorandum.
Nite Moves was trying to fend off a $125,000 tax bill on admission fees, beverage sales and income from private dances between 2002 and 2005. The owners argued that exotic dance qualifies for the tax exemption because it is difficult to perform and requires practice and choreography.
In dissent, Judge Robert Smith said that deciding the artistic merits of different dance forms "is 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. "Under New York's Tax Law, a dance is a dance."
Andrew McCullough, who argued for Nite Moves, said on Tuesday that he is considering appealing the decision to the U.S. Supreme Court. "We're very unhappy and looking at whatever options we have," he said.
Geoffrey Gloak, a spokesman for the state Department of Taxation & Finance, said, "We're pleased with this decision, because it gives similar businesses clear guidance on the issue of sales tax when it comes to live exotic dance establishments."
(Reporting By Daniel Wiessner; editing by Paul Thomasch and Philip Barbara)