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An exotic dancer at a strip club in Florida.

(Chris O'Meara | Associated Press)

Albany, NY -- A strip club's pole dances are tax exempt as an art form, but lap dances are not, a state tax judge has ruled.

That means that millions paid in private lap dances at Albany's Nite Moves strip club could be subject to sales tax, while a cover charge to watch pole dancers may not be taxable.

The judge's ruling came after a state tax department audit, which included tax officials paying for private lap dances and investigators applying for jobs as exotic dancers. (One tax official had visited the club 10 to 15 times during investigations over nearly two decades, the judge noted.)

Of nearly $5 million in strip club sales between 2005 and 2010, roughly $3 million came from private dances. Customers were routinely steered by employees to pay for the lucrative lap dances.

Dance critics testified as to the artistic merits of pole dancing, while exotic dancers described choreographed routines to roughly 40 songs. Pole dancing included practiced moves with rhythm and style.

On the other hand, lap dances involved very few moves within a confined space, Administrative Law Judge Joseph Pinto ruled last month.

The ruling actually signaled a victory for the strip club in its longstanding tax dispute. A state appeals court in 2011 ruled that both dances were taxable.

Pinto's ruling differentiates between the two, possibly protecting pole dancing from sales tax under the theory that strip club patrons are attending a "theater, opera house, concert hall or other hall or place of assembly for a live, dramatic, choreographed or musical performance."