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. There is not the slightest doubt that they were. The people who paid these admission charges paid to see women dancing. It does not matter whether the dance was artistic or crude, boring or erotic. Under New York’s tax law, a dance is a dance. Like the majority, I find this particular form of dance unedifying — indeed, I am stuffy enough to find it distasteful. Perhaps for similar reasons, I do not read Hustler magazine; I would rather read The New Yorker. I would be appalled, however, if the state were to exact from Hustler a tax that The New Yorker did not have to pay on the grounds that what appears in Hustler is insufficiently “cultural and artistic.”