Ever thought your company was due a tax exemption only to come up against a big “no can do” from the state? Maybe some enticement can turn the tide.

In an effort to bolster local theatre and cultural celebrations in the area, the City of Chicago and Cook County amended its amusement tax ordinances. Instead of imposing an 8% tax on the admission price of any tickets purchased, the City and County exempted any live theatrical, musical or any other cultural performance from collecting and remitting those funds.

The exemption was further clarified by state, claiming it wouldn’t “include such amusements as [...] performances conducted at adult entertainment cabarets.”

(That’s “strip clubs,” in layman’s terms.)

Enter Pooh-Bah Enterprises, the local purveyor of live, adult-entertainment needs. According to the owners — and their lawyers — excluding any adult entertainment establishments (again, strip clubs) from a tax waiver on admissions was a violation of the company’s free speech.

A Revealing Debate

Not to be outfoxed by the scantily-clad, the city and county quickly mounted a defense:

• There were both real and substantial differences between small, fine arts venues and adult entertainment cabarets,
• Similar distinctions for tax purposes had previously been upheld in court, and
• The reason for making the distinction had a clear purpose — to enhance the city and county’s reputation in the fine arts.

But an appellate court eventually sided with Pooh-Bah, noting that the city and county’s basis for tax exemptions were content-based, and therefore violated the company’s First Amendment rights.

In theory, there were distinct differences between the fine arts and adult entertainment venues, but the city and county were unable to concretely explain why the line needed to be drawn between them.

A fine art performance involving nudity would match the content of a strip club, but calling it by a different name means one should be exempted over another? A judge didn’t buy it, either.

As for the purpose behind the exemption — to enhance local fine arts — the court found a major difference between encouraging the development of certain companies and impeding the business of another. Giving Pooh-Bah an exemption might not develop local arts (depending on your definition of “art,” anyway), but excluding them from one only cannibalized their business while doing nothing for the fine arts venues.

The take-away? If you or anyone on the Finance staff has an inkling that your company’s due a tax exemption, gather your needed documents and fight for it. This particular case hinged on a First Amendment ruling, but extensive paperwork and resolve might be enough to nab a win.

Plus, if strippers can fathom the ins and outs of state tax regulations, your department’s a shoe-in to win.

Cite: Pooh-Bah Enterprises, Inc., d/b/a Crazy Horse Too v. Cook County Dept. of Revenue, Illinois Appellate Court, No. 1-05-2924, 12/21/07.

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Tags: Chicago, exemption, strip club