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Associated Press photos
The Nite Moves club in Latham, N.Y., is at the center of a state battle over taxes.

Are lap dancers artists?

NY court will decide tax status of adult clubs

Attorney W. Andrew McCullough, left, and client Stephen Dick Jr. leave court Wednesday.

– No one would confuse the Nite Moves strip club with the Bolshoi Ballet, but what the lap dancers do there is art and entitled to the same tax exemption other performances enjoy, a lawyer argued Wednesday before New York’s highest court.

W. Andrew McCullough, an attorney for the suburban Albany strip joint, told the Court of Appeals that admission fees and lap dances at the club should be freed of state sales taxes under an exemption that applies to “dramatic or musical arts performances.”

He said lap dancing is an art form and that, in any case, the state is not qualified to make such determinations and that doing so would violate the constitutional right to freedom of expression.

A lawyer for the state rejected that analysis, and authorities are demanding about $400,000 in back taxes from the club. A ruling is expected next month, affecting the state’s estimated 150 to 200 adult nightclubs in the state.

“We need to get past the idea that somehow this is the Bolshoi,” a skeptical Judge Eugene Pigott said.

McCullough acknowledged that, but added: “What we’re saying is the state of New York doesn’t get to be a dance critic.”

He presented testimony from a cultural anthropologist who visited the club and concluded that the exotic dancing there qualifies as an art form.

Robert Goldfarb, an attorney for the state, said that nobody would visit the club if the dancers didn’t remove their clothes. He also argued that the exemption applies to “choreographed” performances, and what the Nite Moves dancers do doesn’t qualify.

Last year, the Texas Supreme Court said the state could slap a $5 fee on strip club customers, rejecting arguments that the so-called pole tax on nude dancing interferes with the First Amendment right to freedom of expression.

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