Smith added that while he finds this sort of dancing "unedifying — indeed, I am stuffy enough to find it distasteful," discriminating on the basis of content such as imposing a tax on Hustler magazine and giving the New Yorker an exemption "would surely be unconstitutional. It is not clear to me why the discrimination that the majority approves in this case stands on any firmer constitutional footing."
The New York State Department of Taxation and Finance has said all along the exemption didn't qualify in this situation, spokesman Cary Ziter said. "We're pleased with this decision, because it gives similar businesses clear guidance on the issue of sales tax when it comes to live exotic dance establishments."
Nite Moves was originally assessed $124,000 in sales tax due plus interest, Ziter said. The department was unaware of similar cases working their way through the courts, he said.
Calls to the club's attorney W. Anderson McCullough were not immediately returned.