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MATTER OF 677 NEW LOUDON CORP. v. STATE OF N.Y. TAX APPEALS TRIB.

No. 157.

19 N.Y.3d 1058 (2012)

979 N.E.2d 1121

955 N.Y.S.2d 795

2012 NY Slip Op 7046

In the Matter of 677 NEW LOUDON CORPORATION, Doing Business as NITE MOVES, Appellant, v. STATE OF NEW YORK TAX APPEALS TRIBUNAL et al., Respondents.

Court of Appeals of New York.

Decided October 23, 2012.

Attorney(s) appearing for the Case

W. Andrew McCullough, L.L.C., Midvale, Utah ( W. Andrew McCullough of counsel), for appellant.

Eric T. Schneiderman , Attorney General, Albany ( Robert M. Goldfarb , Andrew D. Bing and Barbara D. Underwood of counsel), for respondents.

Shafer & Associates, P.C. ( Bradley J. Shafer , of the Michigan bar, admitted pro hac vice, of counsel), and Morrison & Foerster LLP, New York City ( Hollis L. Hyans and R. Gregory Roberts of counsel), for CMSG Restaurant Group LLC, amicus curiae.

Judges CIPARICK, GRAFFEO, PIGOTT and JONES concur; Judge SMITH dissents in an opinion in which Chief Judge LIPPMAN and Judge READ concur.

OPINION OF THE COURT

MEMORANDUM.

The judgment of the Appellate Division should be affirmed, with costs.

Petitioner, the operator of an adult "juice bar" in Latham, New York, contends that the admission charges and private dance performance fees it collects from patrons are exempt from state sales and use taxes. We agree with the Appellate Division that petitioner failed to meet its burden of proof that a tax exemption applies to those charges.

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