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After what seems to have been quite a hearing, a New York State administrative law judge found that pole dances are artistic performances, and thus exempt from sales tax, but that private lap dances do not qualify for the artistic performance exemption.

The operator of the juice bar, 677 New Loudon Corporation, doing business as Nite Moves (a far superior name for such an establishment), claimed a sales tax exemption for admission fees as well as for private lap dance fees.

Taxpayer argued that such revenue from both sources is exempt pursuant to New York Tax Law §1105(f)(1) as a dramatic or musical arts performance admission charge, which is defined as “any admission charge paid for admission to a theatre, opera house, concert hall or other hall or place of assembly for a live dramatic, choreographic or musical performance.” (NYTL §1101(d)(5)). Across the land, monocles shattered as pole dancing was compared to the opera.

The taxpayer was able to demonstrate through the testimony of dance experts as well as dancers who perform at Nite Moves that pole dancing qualifies as a choreographic or musical art performance. Based on the dancers’ testimony as to the effort they put into their rehearsals and choreography, as well as their investments in their dance costumes, and after viewing videos of the dancers, the Judge held that such performances are exempt from sales tax.

However, private lap dances were distinguished from the pole dances. Based in part on testimony of the supervisor of the tax audit, who, in what can only be described as a diligent pursuit of his duties, visited the Nite Moves 10 -15 times, the private dances were determined to be without the artistic merits of choreography and performance necessary to qualify for the sales tax exemption.

alanna-iacono (347x347)Alanna C. Iacono is an associate practicing real estate law, concentrating on commercial and residential real estate transactions, landlord-tenant, foreclosure and condominium/HOA law. She can be reached by phone at 866-303-9595 toll free or 845-764-9656 and by email.

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