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Erotic Art or....Sex Work.

Since 2010, Stephen Dick Jr. has been fighting the results of a tax audit of Nite Moves, the all-nude Albany strip club he owns, claiming that its cover charges and private dances qualify for a tax exemption for live musical or dramatic arts performances.

It’s a noble fight. As a dancer who’s performed many times on strip club stages and given countless lap dances in private rooms, I know that there is artistic value in the performance. Though the lines between (taxable) commerce and (untaxable) art are notoriously hard to draw — and strip club owners aren’t in the business because they want to promote the arts — the vague and poorly written exemption deserves challenges like Dick’s.

After the Court of Appeals, New York’s highest court, ruled against Dick in 2012, and the Supreme Court refused to hear his appeal in 2013, he finally got a measure of victory last month when Division of Tax Appeals ALJ Joseph Pinto found that he was halfway right: Stripping on stage counts as art, but stripping in the lap-dance room is an amusement. So: While Dick is off the hook for the taxes he owes on cover charges, he has to pay up taxes owed for private dance sales.

Pinto based his ruling on an interesting analysis, largely accepting the argument that lap dances, as described by auditor (and state employee) Donald Haher, lack choreography and production value compared to stage performances, which have a pole, a surrounding audience, and lighting. The judge discounted Dick’s testimony and that of the expert witnesses he presented, saying he found that the videos Dick supplied appeared staged.

But private dances require their own set of production values, and I would argue that the more intimate setting of a couch dance room— specialized seating, frequently with lighting intended to create a mood — creates a very specific kind of performance venue.

Haher visited the club both on professional business and for recreation over a period of years for a total of “10 or 15 visits.” He described the lap dances as a dancer “grinding and rubbing herself over his body,” which generally isn’t inaccurate. Haher also said he didn’t think that private dances were choreographed — but then, being able to suspend disbelief and take all of a stripper’s actions as spontaneous is a common trait in repeat visitors.

I’ve beyond fine with having the lap dances I give being considered a lowbrow “amusement” rather than a highbrow “arts performance.” Strippers definitely have a set of movements they perform in varying sequences — and though lap dances qualify as a form of dance by any definition of the term, there’s a lot of pressure implicit in the standard of “art.” “Amusement” seems more achievable.

Lap dances aren’t in bad company by being downgraded; the majority of popular live entertainments are not covered by the exemption. Like ice dancers, which were mentioned in the Court of Appeals ruling: “If ice shows presenting pairs ice dancing performances, with intricately choreographed dance moves precisely arranged to musical compositions, were not viewed by the Legislature as ‘dance’ entitled a tax exemption, surely it was not irrational for the Tax Tribunal to conclude that a club presenting performances by women gyrating on a pole to music, however artistic or athletic their practiced moves are, was also not a qualifying performance entitled to exempt status.”

That New York’s courts are in the position of having to decide if lap dances or ice dancing or burlesque or any other type of entertainment is art or amusement seems evidence that this exemption is overly vague.

Still, there are two things about this ruling that are satisfying to me. One, it’s only appropriate that the club’s owner pays taxes on lap dances, because the strippers themselves aren’t getting any breaks here. The dancers at Nite Moves are employees — unusual in this industry, where most dancers are classified by clubs as independent contractors who are paid directly by customers. If the club were to credibly argue for a tax break, it would need to charge its cut as an admissions charge, having the customer pay for time in the private rooms and the private dances.

Customers at Nite Moves purchase tokens for lap dances from the club, and dancers get their cut of the charge in their paychecks, from which taxes are deducted. It hardly seems appropriate for the business that they work to be exempt from taxation on what is essentially the club’s take on their gratuities.

Two, it’s nice for once to see a strip club tax case that doesn’t involve criminal fraud. Dick simply tried to avail himself of the legal means to lessen his tax burden, and in a way that was plausible enough to get him halfway there. And if the Nite Moves dancers hadn’t been so good at the performing arts that they convinced a tax auditor they weren’t performing at all, he might have succeeded completely.

Shepard is a stripper and writer in Portland, Ore.

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