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.