N.Y. strip club arguing it deserves same tax exemptions as other dance companies

New York State’s highest court is mulling a question that has long plagued intellectuals: What separates art from mere entertainment?

And in this particular case, what separates pole dance from ballet dance?

There’s $400,000 at stake in Nite Moves v. The State of New York Tax Appeals Tribunal, a case that was argued last week. Nite Moves’ attorney, Andrew McCullough says the strip joint should enjoy the same tax-exempt status as the American Ballet Theatre or any other dance company.

The case has gone back and forth. Nite Moves won the first round of litigation in 2009, but an appellate court reversed that decision a year later.

At issue is whether exotic dancing falls into the legally defined category of “choreographed performance.”

The Albany-area club, which serves neither food nor alcohol, claims that its cover charges and fees for private dances cannot be subject to sales tax simply because the dancers grind more than they jeté.

“The state has continually asserted its authority as a dance critic,” McCullough argued in a court filing.

He said amateur dance troupes are routinely granted tax exemptions on their ticket sales, however rudimentary their choreography.

And the widening acceptance of nudity in modern dance makes a distinction between adult entertainment and serious performance that much more difficult to draw.

Judith Lynne Hanna, a professor at the University of Maryland and author of several books on dance, a witness for the club, pointed out that George Balanchine used to visit Parisian burlesque shows for inspiration. She also provided an analysis of a pole dance routine that identified more than sixty rehearsed movements.

The case will be decided this fall, and a decision in favor of Nite Moves could influence similar cases pending across the country.

One thing it will probably not do, however, is help the political career of Andrew McCullough, who is the Libertarian candidate for Attorney General of Utah. He represents numerous adult entertainment clients, which he considers a matter of principle.

“Utah is less than free, let’s put it. And they need enlightenment,” he said. “I feel like one of the most important things is to protect our freedoms. I do what I can to preach the philosophy, whether it’s in a courtroom or on a stump.”