From the October 23, 2012, dissenting opinion of Judge Robert Smith in a case brought by the operators of Nite Moves, a strip club near Albany, against New York State’s tax agency. Under the state’s tax code, “dramatic or musical arts admission” charges are exempt from sales tax. In a 4–3 decision, the court upheld taxes on exotic dancing.

The ruling of the Tax Appeals Tribunal, which the majority upholds, makes a distinction between highbrow dance and lowbrow dance that is not to be found in the governing statute and raises significant constitutional problems. The Legislature used “choreographic” in its statutory definition of “dramatic or musical arts admission charge” merely as a synonym for “dance.” Strictly speaking, it is true, not all dance is choreographed — some may be improvised — but it is absurd to suggest that the Legislature meant to tax improvised dance while leaving choreographed dance untaxed. In any event, the record shows that the performances here were largely planned, not improvised. Thus, the only question is whether the admission charges were paid for dance performances.