Surprise, surprise

Here’s a legal tidbit that you might find interesting. Surprise, surprise but lap dances aren’t “dramatical or musical art performances” that qualify as an exemption from New York State sales tax.

In a pretty close (4-3) ruling the New York State Court of Appeals decided that despite its entertainment value (uh-hum) exotic dancing does not qualify as “dramatic or musical arts performances” sufficient to permit it to be exempt from sales tax. The petitioner sought to have the court overturn a tax court ruling that was affirmed by the appellate court. The petitioner, owner of an adult “juice bar” in the Albany, New York area was trying to assert that lap dancing should be part of the exemption that the Legislature intended when it stated that “dramatic or musical arts performances” were not subject to sales tax. Now the purpose of the exemption as stated by the Legislature was to promote cultural and artistic performances, and while there are those that might disagree with me, I don’t think that lap dancing was what was going through their minds when they crafted that language. I could however be very wrong — you never know.

Perhaps the problem with the argument is that the law being what the law is, the petitioner was required to demonstrate (or bears the burden to show) that the fees constituted admission charges “for performances that were dance routines qualifying as choreographed performance”. The Court of Appeals determined that the petitioner and its expert witness (there really is an expert witness out there for everything I have learned over my years as an attorney) failed to present any evidence depicting such performances and the expert didn’t have any personal knowledge  or observation of the “private” or lap dances that occurred at the club. That leads one to believe that had the court been provided with demonstrative evidence (and I will leave that to your imagination) perhaps the petitioner might be in a different position right now.

The dissent (those members of the court that disagreed with the majority opinion) plainly stated in their opinion that “those people that paid the admission charge paid to see women dancing. It does not matter if the dance was artistic or crude, boring or erotic.” As the dissenting judge put it plainly put it “Under New York Tax law, a dance is a dance.”

Just thought that you would find it interesting that not all law is exactly that boring.

Don’t take it personally

I don’t often (or hardly ever) put on my lawyer hat when I post to this blog. That is not the purpose of this blog and honestly I don’t want to bore those of you who do real my posts with the usually dry aspects of the legal world. I was however reading the Supreme Court’s opinion in the case entitled Federal Communications Commission, et al. v. AT&T and well, I just had to share. You really have to read this in order to understand exactly how bad AT&T got slapped in the face by the biggest court in our country. Judges, and especially United States Supreme Court Justices, usually don’t come across this way.

AT&T attempted to claim “personal privacy” in order to not have to release Freedom of Information Act records released which might be “embarrassing”. The Court (not very nicely) ruled that even though a recent case deemed corporations “persons” with rights under the law, they are not entitled to claim “personal privacy”. The humorous and rather sarcastic comments are excerpted here, but if you truly want the entire opinion can be read here.

Like the Court of Appeals below, AT&T relies on the argument that the word “personal” in Exemption 7(C) incorporates the statutory definition of the word “person.”… The Administrative Procedure Act defines “person” to include “an individual, partnership, corporation, association, or public or private organization other than an agency.” 5 U. S. C. §551(2). Because that definition applies here, the argument goes, “personal” must mean relating to those “person[s]”: namely, corporations and other entities as well as individuals. This reading, we are told, is dictated by a “basic principle of grammar and usage.” …According to AT&T, “[b]y expressly defining the noun ‘person’ to include corpora- tions, Congress necessarily defined the adjective form of that noun—‘personal’—also to include corporations.” AT&T Brief 14 (emphasis added).

We disagree. Adjectives typically reflect the meaning of corresponding nouns, but not always. Sometimes they acquire distinct meanings of their own. The noun “crab” refers variously to a crustacean and a type of apple, while the related adjective “crabbed” can refer to handwriting that is “difficult to read,” Webster’s Third New Interna- tional Dictionary 527 (2002); “corny” can mean “using familiar and stereotyped formulas believed to appeal to the unsophisticated,” id., at 509, which has little to do with “corn,” id., at 507 (“the seeds of any of the cereal grasses used for food”); and while “crank” is “a part of an axis bent at right angles,” “cranky” can mean “given to fretful fussiness,” id., at 530.

Even in cases such as these there may well be a link between the noun and the adjective. “Cranky” describes a person with a “wayward” or “capricious” temper, see 3 Oxford English Dictionary 1117 (2d ed. 1989) (OED), which might bear some relation to the distorted or crooked angular shape from which a “crank” takes its name. That is not the point. What is significant is that, in ordinary usage, a noun and its adjective form may have meanings as disparate as any two unrelated words. The FCC’s argument that “personal” does not, in fact, derive from the English word “person,” but instead developed along its own etymological path, Reply Brief for Petitioners 6, sim- ply highlights the shortcomings of AT&T’s proposed rule.

“Person” is a defined term in the statute; “personal” is not. When a statute does not define a term, we typically “give the phrase its ordinary meaning.” Johnson v. United States, 559 U. S. ___, ___ (2010) (slip op., at 4). “Personal” ordinarily refers to individuals. We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities. This is not to say that corporations do not have correspondence, influence, or tragedies of their own, only that we do not use the word “personal” to describe them.

Certainly, if the chief executive officer of a corporation approached the chief financial officer and said, “I have something personal to tell you,” we would not assume the CEO was about to discuss company business. Responding to a request for information, an individual might say, “that’s personal.” A company spokesman, when asked for information about the company, would not. In fact, we often use the word “personal” to mean precisely the oppo- site of business-related: We speak of personal expenses and business expenses, personal life and work life, personal opinion and a company’s view.

…

AT&T’s argument treats the term “personal privacy” as simply the sum of its two words: the privacy of a person. Under that view, the defined meaning of the noun “per- son,” or the asserted specialized legal meaning, takes on8 FCC v. AT&T INC. Opinion of the Court

greater significance. But two words together may assume a more particular meaning than those words in isolation. We understand a golden cup to be a cup made of or resembling gold. A golden boy, on the other hand, is one who is charming, lucky, and talented. A golden opportunity is one not to be missed. “Personal” in the phrase “personal privacy” conveys more than just “of a person.” It suggests a type of privacy evocative of human concerns—not the sort usually associated with an entity like, say, AT&T.

And to add insult to injury… the Supreme Court wraps its up with the following conclusion.

We reject the argument that because “person” is defined for purposes of FOIA to include a corporation, the phrase “personal privacy” in Exemption 7(C) reaches corporations as well. The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.

Slam dunk there with the last line. Gotta love those justices.

Note in order to not cause you to become disinterested before you could get to the interesting stuff, I omitted the Court’s lengthly citation references — the stuff us lawyers live for….. just kidding, folks.