Argument in the Nite Moves Case: Lap Dances Are Choreography and Tax Exempt

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ALBANY — from – An assistant state attorney general will be up against some of the nation’s top adult entertainment industry specialists, including Hustler magazine creator Larry Flynt’s lawyers, next month when he tries to cement a ruling that the Latham gentlemen’s club Nite Moves must pay taxes on “fantasy” routines, including lap dances by women wearing nothing more than perfume and a smile.

Robert Goldfarb’s job representing Tax Commissioner Jamie Woodward and the state Tax Appeals Tribunal in a Court of Appeals case involving 677 New Loudon Corp., dba Nite Moves, will be argued Sept. 5.

The state’s top court accepted the club’s appeal last October, but in July a team of newcomer attorneys asked for permission to become friends of the court.

It turns out that lawyers for CMSG Restaurant Group, another name for Flynt’s Hustler Club Cabaret in Manhattan, have concerns similar to those of Nite Moves’ operators because of a pending administrative case involving Flynt’s own adult club. So Hollis Hyans and Bradley Shafer, representing the Hustler chieftain, are asking the court to let Shafer take five minutes to present the arguments of Nite Moves’ lawyer, Utah-based W. Andrew McCullough.

Shafer, former president of the First Amendment Lawyers Association, has extensive experience representing the adult entertainment industry, including arguments before several states’ top courts as well as the U.S. Supreme Court.

McCullough, a member of FALA, has partnered with Shafer in the past and currently represents several strip clubs and escort agencies.

His chief argument will be that a cultural anthropologist has described the couch dances at Nite Moves as “live choreographic performances,” and therefore exempt from taxes.

The state assessed the dance club $129,000 in taxes, and Nite Moves is seeking to get the money back while fighting continuing years of taxation.

McCullough has already rehearsed his argument in the lower court. A transcript of his comments shows he described the exotic dancers of Nite Moves as involved in “a form of art … of adult entertainment. … It’s about fantasy.”

He likened their performances to ballet where a ballerina will bend before she leaps — but “in pole dancing, you grab, right, and then you lift yourself.”

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