Under New York law, tickets for things like plays, concerts and recitals are exempt from sales tax. Thus, the owner of an Albany-area gentleman’s club had tried to argue that entrance fees to his establishment were similarly exempt because of the artistic performances taking place therein.
And the club owner was only one judge away from proving his point, with the court voting 4-3 against his claims.
While the dissenting judges stated that state law makes no distinction between “highbrow dance and lowbrow dance,” the majority pointed out that not all entertainment is exempt, as taxes are collected on things like sporting events and amusement park tickets.
In the end, the majority found the state lawmakers had created the exemption “with the evident purpose of promoting cultural and artistic performances in local communities,” and that the club had not been able to prove it qualified.
The majority wrote that if you have to pay taxes on tickets to see an ice-dancing show, it’s not unreasonable “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.”
The dissent countered:
“The majority implies that since the Legislature did not exclude from the entertainment tax other lowbrow forms of entertainment, such as baseball games and animal acts … it would not have wanted to exclude pole dancing; but the issue is not what the Legislature would have wanted to do, but what it did.”