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New York court rules private lap dances not tax exempt

NEW YORK (Reuters) - A private lap dance is not tax exempt, a New York court has ruled after a gentleman's club near the state capital of Albany claimed the service was a tax free "dramatic or musical art performance."

In New York state a sales tax must be paid on admission to or for the use of any place of amusement except for dramatic or musical arts performances.

Nite Moves of Latham, New York, owned by 677 Loudon Corporation, has been fighting a 2005 audit by the New York Division of Taxation, which found that the club owed nearly $125,000 in sales tax on door admission charges and private lap dance sales.

But the New York State Supreme Court Appellate Division ruled on Thursday that the club had not provided enough evidence to support its argument that lap dances were a dramatic or musical art performance.

"In short, petitioner was denied the requested relief due not to the nature of its business but, rather, because of the inadequacy of its proof," a five judge panel ruled.

Nite Moves lawyer, Andrew McCullough, said the company plans to appeal the decision to the New York Court of Appeals.

"We brought in the foremost expert in the field," McCullough said. "She is the one in this country who has made a complete and detailed study of the art of exotic dance and if they are not going to believe her I don't know who you believe."

According to the New York State Supreme Court ruling, the expert had found that "the presentations at Nite Moves are unequivocally live dramatic choreographic performances" and the private dances used "similar kinds of movements" as performed on stage and also qualified as choreographed performances.

But the judges wrote that the expert had not seen any private dances at Nite Moves and had based her opinion on private dances seen at other clubs and that a Nite Moves DVD submitted as evidence did not include private dance footage.

(Reporting by Michelle Nichols; Editing by Barbara Goldberg and Greg McCune)

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