An Albany-area men's club has asked the U.S. Supreme Court to review whether a state tax exemption on artistic performances such as ballet should also apply to nude or semi-nude pole dancing. Attorneys for the Latham club called Nite Moves have filed a petition for a writ of certiorari with the Supreme Court seeking review of the state Court of Appeals' decision in Matter of 677 New Loudon v. State of New York Tax Appeals Tribunal, 19 NY3d 1058 (2012).

The 4-3 state court determined that Nite Moves dancers are not engaged in "dramatic or musical arts performances" that allow ballets and other entertainment to qualify for an exemption from sales tax charges (NYLJ, Oct. 24, 2012). "The decision below is in obvious conflict with this Court's well-established jurisprudence holding that content-based taxation is anathema to the First Amendment guarantee of free expression," a team of Davis Wright Tremaine attorneys led by Robert Corn-Revere wrote in their petition.

W. Andrew McCullough of Midvale, Utah, represents Nite Moves. The club maintains it is entitled to sales tax exemptions of nearly $129,000 because the routines by its dancers represent tax-exempt artistic performances. A hearing officer for the Tax Appeals Tribunal sided with the club before being overruled by state courts.