NFA Gun Trust Lawyer Blog

If you are wanting to contact the ATF to find out your status or check on a NFA firearms transfer to an individual, trust, corporation, or entity please call them at 304-616-4500.

There are several steps in designing a NFA trust, the first consideration is to determine who should be the Settlor (or Grantor). This may change depending on who the beneficiary is, but generally the settlor is the person who contributes the property to the trust and is the current beneficiary of the property. The Settlor is not an authorized user, but is the one that will receive the benefit of the property.

To determine the best choice for the settlor, we often ask our clients if they are married, do you they have adult children, and who they want to receive the items after your death. Often the Settlors can be changed to reduce the risk of future legislative changes and increased transfer taxes. While this is not a normal consideration with a typical trust, a NFA trust should take this into consideration to create the most flexibility and protection for the creators of the trust and their families.

How do I stop the ATF from finishing the approval process on a Form 4 or Form 1?

Either the buyer (individual, officer, or trustee) or the seller can call the BATFE @ 304-616-4500 with the serial number of the items, speak to the examiner, and withdraw the application.  The fee may not be refunded but your should ask about it.  Apparently it is taking 60 (as of June 2009) days to transfer the file to the examiners and they cannot be stopped until the file is in the hands of an examiner.

You might want to stop a transfer, or change the application if you know that the documents you submitted are incorrect, need to be modified, you are moving to another state, or something has changed in a way that you can no longer trust the other trustees.

Last week there was an issue where an individual was contacted by the ATF in an effort to seize his Title II firearms because of an irregularity with his Trust. A Gun Trust Lawyer reviewed, amended, and restated the trust in question, creating a valid and enforceable trust that deals with the unique issues of NFA Firearms ownership, transfer, and possession. The BATFE had a justifiable reason to pursue the forfeiture action and the original reports on the subguns forum were accurate. After discussions with the BATFE and presentation of a valid Trust the BATFE decided to cease and desist their forfeiture action at this time and the individual is no longer in jeopardy of having his items seized, being arrested, or being fined.  The BATFE and individual have requested that the details not be disclosed.  The BATFE does not want to jeopardize similar ongoing investigations involving invalid trusts.  We can state that the issues involved with this action have been covered elsewhere on this website.

If you created a trust with Quicken or Legal Zoom, you should follow Legal Zoom's and Intuit's advice and have your trust reviewed by an attorney to avoid potential problems. The creators of these programs did not anticipate that individuals would be using the documents in situations that could result in criminal liability.

You may choose to have the trust reviewed to determine if the trust is valid, or reviewed to see if there are issues with the NFA that are not dealt with in your trust, but either way it is important to have your trust reviewed by someone who is familiar with estate planning as well as the NFA.

Joshua Prince alerted me to a blog post on a developing situation he ran across on Subguns where an individual used Quicken to attempt to create a trust for NFA purposes.  Unfortunately the BATFE has now decided that his Quicken trust was invalid and is seeking to seize his MAC-11 and Silencer.  He could also be subject to a prison sentence of 10 years and $250,000 in fines.

This is a very unfortunate situation that could cost the individual severely. Its important to remember that just because the ATF approves your transfer, it does not mean that you are legally in possession.  This is the second situation involving invalid trusts and the ATF that we have seen this month. It looks like the ATF is beginning to look more closely at the trust documents they are receiving.

If you created a trust for NFA purchases in Quicken, Legal Zoom, or used another generic trust that was not reviewed before buy a lawyer before submitting it to the BATFE, you should contact a NFA trust attorney to review your trust for validity.  If you need help finding a local NFA Trust Lawyer we can help.  We work with attorneys in more than 40 states including Florida Gun Trust lawyers and South Carolina NFA lawyers to help review and create valid NFA trusts.

Note: At this time the link to the subguns has been taken down because of questions.  We believe this posting is authentic based upon correspondence with the individual but will update this post as the situation and our agreement with the individual (if any) allows.

Recently I was contacted by a photographer who was hired to do product shots for a manufacture of short barreled rifles.  They wanted to ship the firearms to the photographer so that he could photograph them in his studio.  The photographer was concerned about violating the NFA.

Although dealers and manufactures have the ability to transfer these restricted items, individuals and other companies who are not licensed by the ATF must comply with both the federal and state laws in place regarding possession, transfer, and use of these firearms.

Your possession of the SBR would violate the NFA, and potentially state laws.  When you ship the items back to the manufacture you could be violating state and federal firearms laws.  Generally, in situations like this, it might be best to go to the manufactures site and do your marketing efforts at their location to avoid violating state and federal regulations on firearms.

Joshua Prince a 3rd year law student has written an article on the BATFE approving an invalid trust.  Apparently an  individual on Silencertalk.com received back two approved Form 1's and on the back of one of his forms it stated "Consult counsel w/ the filing of your trust, proves to be invalid"

There have been several articles on why Quicken should not be used for creating a trust including an article by Mr. Prince which applies PA law to some factors I found as well as Using Quicken to prepare a trust: The good, the bad, and ugly! 

Josh contemplates that while the trust is invalid no transfer can take place and the the assets in the trust could be subject to a forfeiture action and anyone in possession could be subject to criminal charges for invalidly being in possession of a Title II firearm without properly transferring the firearm.

This is not the first invalid Quicken and Legal Zoom trust that I have heard of.  I have reviewed and modified many trusts that individuals have attempted to create on their own using canned software or generic forms.  Many of these trusts do not achieve the desired results and almost half of the trusts I have reviewed are invalid because of technical flaws contained within the trust.

Under these circumstances Mr. Prince and I  both would recommend that no transfer Form 1 or Form 4 take place to an invalid trust.  Josh suggested and I would agree that the transfer should be voided, the trust amended to a valid state, and then the trust should reapply for the transfer properly.

If you have a trust that is being used for NFA purposes and you would like it reviewed for validity contact a Gun Trust Lawyer.

Many people refer to Title II firearms (Silencers, SBR, SBS, and Machine Guns) as Class 3 weapons) as Class 3 firearms or weapons.  The Class 3 terminology is generally used with a dealer license and not a type of weapon but a license.  SOT means  special occupational tax and refers to the tax due upon transfers of items restricted by the NFA ( Generally $200 except for AOWs which have a tax of only $5)

If you purchase a Title II firearm from a dealer or individual out of your state, you will need to use a class 3 transfer agent to move the items across state lines.  If you purchase from an individual within your state then no transfer agent is required.

Recently my wife was in New York visiting some family when they attempted to convince her that I, her husband, was helping criminals avoid background checks and arming them with machine guns, assault weapons, and other "illegal" firearms.  Additionally, the opined that my NFA Gun Trust Lawyer website was a radical Gun Rights forum. 

While I would not find this hard to believe coming from people who live in the Northeast, I did find it hard to believe from transplanted New Yorkers who live in Texas and been surrounded by individual gun owners and guns being a part of the culture.  In trying to explain what I do to some family members including my wife, I found that there were some basic misunderstandings of the process, and the state of the interpretation of the 2nd Amendment of the Constitution as the Supreme Court interpreted it last year.  I decided that this would be valuable for many of my clients who are often dealing with similar issues.  Many people have family members or friends who are uneducated on the current status and interpretation of the Second Amendment.  As a result many people feel that there is an interpretation issue surrounding what the Second Amendment means.  While the Supreme court in a divided court found in favor of the individuals right to own a firearm, they unanimously found that the Second Amendment applied to an individuals right to keep and bear arms and not to that of a state.   We are at a time in history, when many of our rights involved in gun ownership are at risk.  Even though our current administration states that they support the Second Amendment, the do not support it as it has recently been interpreted and have an agenda posted on their website under urban plans to ban assault weapons.  They are currently trying to define an assault weapon as any firearm that have a removable cartridge.

While some people are not "pro-firearms," they still may believe in the ability for others to exercise their 2nd amendment right if they so choose.  This is similar to people that are "pro-choice" on abortion issues, but do not impose their beliefs on others. In the United States, women have the right to choose (within limitations) and Americans have the right to own firearms (within limitations), without unnecessary burdens or restrictions from the State government.  Whether or not you choose to possess the firearm is a decision that should be up to you just as other individual rights that are guaranteed to us in the US constitution.  

A person cannot purchase a machine gun without a background check just by using my trust.  The Gun or Firearms Trust merely prevents the local CLEO (Chief Law Enforcement Officer) from arbitrarily denying fully qualified individuals the ability to exercise their constitutional right to purchase a firearm.  A NFA or Gun trust does not make it easier for a criminal to purchase a firearm because criminals do not purchase legal machine guns, silencers, and SBR's because of the ease in which these items can be tracked back to the purchaser.

A person that intends to commit a crime with an firearm does not pay $20,000 - $250,000 for a legal machine gun and notify ATF of this purchase.  If a person wants to commit a crime with a machine gun, he or she is more likely to purchase it illegally on the street, without paperwork, and for a fraction of the price (around $1200).

Besides allowing individuals to protect their right to purchase firearms, my trust provides protections for the families and friends of gun owners that are not available with individual ownership.  Through the traditional purchase route, many individuals would be at risk of criminal activity and prosecution for permitting a friend, spouse, parent, or child use or have access to the items.  In addition, individual ownership does not deal with important issues, such as incapacity or death of the firearm owner.  Likewise, a gun trust addresses the transfer of these firearms to heirs that may not be eligible to receive them, such as children or people living in a state where Title II firearms are not permitted.  As a Gun Trust lawyer, I have seen many individuals that were forming corporations, trusts, and LLCs that were generic in nature and did not address their needs.  Due to these errors, they placed their families, friends, and children at unnecessary risk.  A risk that can be avoided with a adequate NFA gun trust.

In 1934, the government enacted the National Firearms Act as an effort to stop the gangster activity.  In particular, the government used its taxing arm to arrest them for being in possession of improperly registered or transferred weapons.  Since then, there has only been one illegal use of a legal machine gun for criminal activity, which was committed by a police officer.

I believe that Americans should be proud to exercise their rights to own firearms and help others understand the flaws in their logic.  Remember Guns don't kill people, criminals kill people.  If you look at most firearm legislation, it only seeks to restrict lawful ownership of firearms.  It does not offer an answer to the question, "how to keep guns out of the hands of criminals," which should be the focus of any gun control.

Under the NFA, there are no specifics on what type of storage device should be used to safeguard the NFA firearms.  Most people tend to use gun safes that have key or combination lock.  If necessary one can even use a separate lock inside of a safe to limit access to the firearms.

While it is permissible to use a locked drawer or closet to restrict access, one must realize that such a limited restriction on access will comply with the federal requirements but may create potential personal liability for damage done by the devices under a theory of negligence.  If someone with a propensity to cause harm is able to easily circumvent the restricted access and you have knowledge of the risk, you can be held responsible under you state's negligence laws for damages that result in your breach of duty by allowing them easy access to the items.

In other words while a gun safe is not a statutory requirement under federal law, it might be a good idea if someone who has access to your home might injure others through easily accessing the items.

Although Florida and most states do not have any specific requirements for storage, except if there are minor children in the home, you should verify this before using a limited security storage device like a closet or drawer.

With the recent discussions about the potential federal ban on assault weapons being reinstated,  I thought it would be interesting to see which states already have bans on Assault Weapons

California bans "assault weapons", .50BMG caliber firearms, some .50 caliber ammunition and "unsafe handguns."

Connecticut  Bans "assault weapons" as well as select fire machine guns.

District of Columbia prohibits new acquisition of handguns and any semi-automatic firearm capable of using a detachable ammunition magazine of more than 12 rounds capacity and any handgun not registered after February 5, 1977  (parts recently ruled unconstitutional).

Hawaii prohibits "assault pistols."  Assault rifles and shotguns are restricted the same regular rifles and shotguns

Illinois: Chicago, Evanston, Oak Park, Morton Grove, Winnetka, Wilmette, and Highland Park prohibit handguns; some cities prohibit other kinds of firearms.  Firearms identification card is required.

Maryland prohibits "assault pistols"; the sale or manufacture of any handgun manufactured after Jan. 1, 1985, that does not appear on the Handgun Roster; and the sale of any handgun manufactured after January 1, 2003 that is not equipped with an "integrated mechanical safety device."

Massachusetts: It is unlawful to sell, transfer or possess "any assault weapon or large capacity feeding device" [more than 10 rounds] that was not legally possessed on September 13, 1994 and the sale of handguns not on the Firearms Roster. The City of Boston has a separate "assault weapons" law.

Michigan: Certain folding stock carbines are restricted.

New Jersey  bans "assault weapons" and high capacity magazines.

New York  bans "assault weapons" unless lawfully possessed or manufactured prior to September 13, 1994.

Ohio: Some local jurisdictions use to ban "assault weapons.", but because of a Ohio Supreme court case, all of these laws are unconstitutional under the preemption doctrine recognized by Ohio.

Virginia prohibits "Street Sweeper" shotguns.

The sunset of the federal assault weapons ban does not affect the validity of state and local "assault weapons" bans.

Section 479.11 of the National Firearms Act defines a Transfer as:  This term and the various derivatives thereof shall include selling, assigning, pledging, leasing, loaning, giving away, or
otherwise disposing of.

There seems to be much confusion over the violations of the National Firearms Act over this term because the typical legal definition of transfer involves a change in the possession and / or legal title of; convey.

There is clearly a significant difference in how the NFA defines the term Transfer.

Section 479.11 of the NFA defines a Machine gun as. Any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun, and any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person.

Is a fully automatic 6mm airsoft gun a machine gun under the NFA? Of all the terms defined in the NFA, one of the most frequently used ones is the term weapon which is not defined.  I have submitted this question to the ATF and will update the site when we obtain an answer.

Section 479.11 of the National Firearms Act defines a Person as:  A Partnership, company, association, trust, estate, or corporation , as well as a natural person.

We have had several clients ask us for an inventory sheet for  to keep with the firearms assets in their trust.  The following excel template will allow you to track all of your firearms and note which are registered and which are subject to the ATF.  You can modify the document to meet your needs and it can provide your successor trustee additional help and guidance in the event of your incapacity or death. Firearms-inventory.xls