A Dance Is a Dance The court's 4-to-3 majority held that the dancing at Nite Moves is not art but - like baseball games, stock-car races and ice shows - is a form of entertainment that falls within "the broad sweep of the tax." In this case, the dissent by Judge Robert Smith has the more convincing argument. The majority decision, he wrote, rests on "a distinction between highbrow dance and lowbrow dance" the state tax statute does not make. While the state could tax pole-dancing by stating plainly in the statute that such performances do not qualify for the exemption, the Legislature did not do that, and the state tax tribunal, which decided to tax pole dancing and lap dancing, does not have the power to interpret the statute that way. The majority also found that the dances at Nite Moves were taxable because they were not choreographed performances. But, as Judge Smith noted, they were clearly planned, and it would be absurd to say that all improvised dance should be taxed. More important, he argued, "It does not matter if the dance was artistic or crude, boring or erotic. Under New York's tax law, a dance is a dance. As a broader principle, the state tax tribunal's position amounts to discrimination on the basis of content and raises a serious First Amendment issue. The decision, the dissent says, upholds a policy that is like taxing Hustler magazine and not The New Yorker simply because what appears in Hustler is insufficiently "cultural and artistic." Nite Moves is planning to ask the appeals court to revisit this issue and, if it refuses, to ask the Supreme Court to review the case. The club's owner says that he has already paid more than $200,000 in back taxes and interest so he could contest the state's tax ruling. This case involves an important matter of principle that deserves further judicial review.