Tax Appeals Tribunal Finds Pole Dancing Not Exempt from Sales Tax as a “Dramatic or Musical Arts Performance”

The Tax Appeals Tribunal by decision dated April 14, 2010, granting the exception of the Division of Taxation, reversing the Determination of ALJ Catherine Bennett, and sustaining the Notice of Determination, held that admission charges imposed on patrons to enter an “adult juice club” to view pole dancing performed by exotic dancers was not within the exception for “dramatic or musical arts performances” in Tax Law Section 1101(d)(5), which imposes sales tax on admission charges to “any place of amusement”.  Matter of 677 New Loudon Corporation, d/b/a Night Moves.

In an interesting opinion, the Tribunal addressed, somewhat dryly, the Petitoner’s contention that the dancer’s performance was “choreographed” by first referencing the Webster’s College Dictionary definition of “choreography” as consisting of “the art of composing ballets and other dances and planning and arranging the movement, steps, and patterns of dancers” and then concluding that “[w]e question how much planning goes into attempting a dance seen on YouTube.”

The Tribunal also questioned the credibility of Petitioner’s expert, whose testimony the Tribunal observed “appear[ed] designed to neatly fit into the statutory exemption language.”  The Tribunal at one p0int mused “[i]f we were to place a small stage in our living room, with chairs around it, would it still be a living room?  We believe that it would, and petitioner remains an adult juice club where adult entertainment is presented.”

The case has been appealed to the Third Department.  To read the decision, press here: Tax Appeals Tribunal Decision in 677 New Loudon Corporation D/B/A Night Moves

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