NFA Gun Trust Lawyer Blog

Owning a pistol and a shoulder stock that can be attached where the barrel is less than 16 inches and the length of the firearm is less than 26 inches is a violation of the NFA without an approved Form 1.

There are certain exceptions for some items which have been removed from the NFA under C&R such as an original and unmodified Mauser "Broomhandle" and some Lugers. Remember that the NFA use to permit modification to C&R but no longer does. If you have a gun that was C&R and then modified, it most likely does not maintain the C&R status of the firearm.

This was common in California and if you are in possession of these items, it is our belief that you are no longer permitted to be in possession and you should check with the lawyers we work with in California understand your rights and obligations.

Besides complying with the other requirements for being a FFL, if you want to become a manufacture, seller, or importer of Title II firearms there are several licenses you may need. These include the following and the fees are yearly fees.

1. Importer of Title II Firearms $1000.00
2. Manufacturer of Title II Firearms $1000.00
3. Dealer of Title II Firearms $500.00 ( This is the Class III Special Occupational Tax)

If your gross revenues from the previous tax year were less than $500,000 then you may qualify for a reduced rate as follows.

1. Importer of Title II Firearms $500.00
2. Manufacturer of Title II Firearms $500.00

Note: Having a Class 3 SOT license will not permit you to have or use a non-trasferrable machine gun for personal use. The ATF takes a close look at these transactions and no one should attempt to do this as an inexpensive way to own a machine gun as it could be a very expensive lesson.

No. The NFA permits only manufacturers, makers, and importers to register firearms. Mere
possessors may not register firearms. An unregistered NFA firearm is a contraband firearm,
and it is unlawful to possess, purchase, sell, or use the weapon. There are certain exceptions for items that were brought back from a war and where there is documentation showing that there was permission to bring the items back to the United States. While the ATF is under no obligation to do so, we have seen several cased where these items were presumed to have been registered and were put into the NFA registry. Otherwise, the possessor should contact the nearest ATF office to arrange for its disposition.

Violators may be fined not more than $250,000, and imprisoned not more than 10 years, or both. In addition, any vessel, vehicle or aircraft used to transport, conceal or possess an unregistered NFA firearm is subject to seizure and forfeiture, as is the weapon itself.

[49 U.S.C. 781-788, 26 U.S.C. 5861 and 5872]

It appears that ATF does not permit individuals to own the parts necessary to make a SBR or SBS prior to receiving their permission to manufacture / assemble the items. Because of this is it recommended that the same person should not purchase all of the items necessary to make a SBR or SBS and if they do, they should not take all of them home from the dealer. As a barrel can often be attached to several guns, it would be prudent to leave the barrel at your Class III dealer prior to receiving an approved ATF Form 1.

This information comes from a similar question and is found on the ATF website.

A FFL (Type-7 or Type-10) who pays the Special Occupational Tax (SOT) may possess the parts required to assemble NFA firearms (SBR or SBS). A non-licensee (individual, trust, corporation, or other business entity) or FFL who has not paid the SOT is
required to register any NFA firearm via an ATF Form 1 (5320.1) prior to acquisition of the
parts required to assemble such firearm.

A person who is licensed under the Gun Control Act (GCA) to manufacture firearms and who has paid the special (occupational) tax to manufacture National Firearms Act (NFA) firearms may replace a component part or parts of a silencer as long as the repairs do not result in removal, obliteration, or alteration of the serial number. If a silencer part bearing the serial number, other than the outer tube, must be replaced, the new part must be marked with the same serial number as the replacement part.

The term "repair" does not include replacement of the outer tube of the silencer. The replacement of the outer tube is so significant an event that it amounts to the "making" of a new silencer. As such, the new silencer must be marked, registered and transferred in accordance with the NFA and GCA.

In the event that identical replacement parts for a silencer are not available, new and different component parts may be used as long as the silencer retains the same dimensions and caliber. In addition, the repair may result in a minimal reduction in the length of the outer tube due to rethreading, but repair may not increase the length of the outer tube. Increasing the length of the outer tube significantly affects the performance of the silencer and results in the "making" of a new silencer. Reducing the length of the tube by a minimal amount in order to repair a silencer is often necessary to replace damaged end caps, as the tube must be rethreaded. Such minimal reduction of the length of the tube uses all of the original parts, does not significantly affect performance of the silencer, and may be done as part of a repair process without making a new silencer.

Persons other than qualified manufacturers may repair silencers, but replacement parts are "silencers" as defined in 18 U.S.C. § 921(a)(24) that must be registered and transferred in accordance with the NFA and GCA.

If you own the firearms as an individual, the NFA firearms may be left in a safe deposit box in your former State of residence. The firearm can also be left or stored in the former State of residence at the house of a friend or relative in a locked room or container to which only the individual owner has a key. The friend or relative should be given a copy of the registration forms and a letter from you authorizing storage of the firearm at that location.

If you use a NFA Gun Trust, you can do the same as with an individual, but you may also leave them with another trustee or add someone as a trustee to leave the items with. You should be cautious whom has access to the firearms as they could create some additional liability on your behalf and those who are involved with the trust.

Today the ATF announced that a Laredo man was sentenced to 10 years for the illegal possession of a firearm. It is important to understand who can and who cannot own, possess, or use firearms whether they are Title I or Title II firearms. Just because you might not consider a silencer a firearm, its possession is limited in the same way a regular pistol is. While there is not official duty to ask if someone is prohibited, its wise to do so because not only is the possession of an item subject to the NFA regulated, but the transfer (handing it to them or allowing them to have access to it) is also regulated and could subject each of you to 10 years in jail and up to a $250,000 penalty per occurence.

Our NFA Gun Trusts ( the basic and the new asset protection firearms trust) both allow the people involved with your trust to understand who is prohibited and who is not. Often people do not even know that they have lost their firearms rights and it is important to have them understand when they are a prohibited person as well as allow you to know whether a family member or friend is prohibited now and in the future.

If you would like to discuss asset protection for your firearms or creating a gun trust to own your firearms including Title II firearms, we would be happy to help you find a local Gun Trust Lawyer to create a trust for you.

As with regular firearms, some Type II firearms (those sold by class 3 dealers) can only be sold to residents of their state, others can be sold to residents of neighboring states. If an item is not legal in your state but is in another state where you would like to purchase it, a Gun Trust may help with this issue. With a Gun trust, you can solve this problem by including someone who is a resident of the other state as a Trustee of your Gun Trust. Any Trustee on your Gun Trust with the power to make purchases, can purchases the items as long as the person who is picking them up is complying with that state's laws. Once the Gun Trust owns the items, any Trustee, with the power to use the items can manage them and store them where they want, as long as it the items are legal to possess in the state. A trust also has the benefit of being able to be modified in the future so you can add or remove a trustee (authorized purchaser or user).

Today, the ATF revised it's definition of State of Residence and residency requirements.

The Gun Control Act (GCA) generally prohibits any person from transferring firearms to any unlicensed person who they know or have reasonable cause to believe does not reside in the State in which the transferor resides. See 18 U.S.C. § 922(a)(5).

27 C.F.R. 478.11 defines the term "State of residence" differently for U.S. citizens and aliens. A U.S. citizen's State of residence is the State in which he or she is present with the intention of making a home; while an alien is considered a resident of a State if he or she has resided in that State for a period of at least 90 days prior to the date of transfer with the intention of making a home.

Federal firearms licensees (FFLs) were previously required to obtain documentation establishing that an alien legally in the United States has resided in the State continuously for at least 90 days prior to the transfer of the firearm. See Question 20c of the Firearms Transaction Record, ATF Form 4473.

The DOJ recently concluded that, as a matter of law, applying a more stringent State residency requirement for aliens legally present in the U.S. than for U.S. citizens is incompatible with the language of the GCA. As a result, ATF will be revising the regulations in 27 C.F.R. Part 478 to conform to the DOJ's conclusions by removing the separate 90-day residency requirement for aliens. Once the regulations have been revised, both U.S. citizens and aliens legally present in the U.S. will be subject to the same requirements for State residency and proof of residency. ATF is in the process of amending its forms to conform to the statute as well.

Until process is complete, the current regulations have the force of law and for the time being, FFLs should continue to use the current forms and abide by the current regulations.

New Gun Trust Provides Asset Protection for Firearms Collectors and ther Families.

Until now, the answer has been that a gun trust does not provide any asset protection for firearms. Today we are announcing a new form of Gun Trust for the Gun Collector that does provide asset protection from creditors of the creator as well as the beneficiaries. This trust has many of the same benefits of our normal Gun Trust and we can even convert your previous gun trust to a new asset protection gun trust.

This trust is not designed for everyone but should be considered if you have a substantial firearms collection.

There have been many question on converting a pistol to a rifle and back to a pistol. The ATF recently issued a ruling regarding this to help clarify what is permitted and what is not. If you would like to read the full ruling it can be found here. ATF Ruling 2011-4.pdf

In summary the ATF made the following findings.

Held, a firearm, as defined by the National Firearms Act (NFA), 26 U.S.C. 5845(a)(3), is made when unassembled parts are placed in close proximity in such a way that they:

(a) Serve no useful purpose other than to make a rifle having a barrel or barrels of less than 16 inches in length (e.g., a receiver, an attachable shoulder stock, and barrel of less than 16 inches in length); or
(b) Convert a complete weapon into such an NFA firearm, including - (1) A pistol and attachable shoulder stock; and (2) A rifle with a barrel of 16 inches or more in length, and an attachable barrel of less than 16 inches in length.

Such weapons must be registered and are subject to all requirements of the NFA.

Held further, a firearm, as defined by 26 U.S.C. 5845(a)(3) and (a)(4), is not made when parts in a kit that were originally designed to be configured as both a pistol and a rifle are assembled or re-assembled in a configuration not regulated under the NFA (e.g., as a pistol, or a rifle with a barrel of 16 inches or more in length).

Held further, a firearm, as defined by 26 U.S.C. 5845(a)(3) and (a)(4), is not made when a pistol is attached to a part or parts designed to convert the pistol into a rifle with a barrel of 16 inches or more in length, and the parts are later unassembled in a configuration not regulated under the NFA (e.g., as a pistol).

Held further, a firearm, as defined by 26 U.S.C. 5845(a)(4), is made when a handgun or other weapon with an overall length of less than 26 inches, or a barrel or barrels of less than 16 inches in length, is assembled or produced from a weapon originally assembled or produced only as a rifle. Such weapons must be registered and are subject to all requirements of the NFA.

We received a copy of the following response dated August 30, 2010 from a reader of the blog that felt that this may be useful to others. If you want to download a copy of the letter it has been provided in a PDF format for your reference ATF Response - AFG on AR Pistol.pdf

The letter states:

This refers to your recent correspondence to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) regarding the manufacture of a firearm. Specifically, you asked about the lawfulness of manufacturing an AR-15 type pistol for your personal use. Your letter was forwarded to ATF's Firearms Technology Branch (FTB), Martinsburg, West Virginia, for reply.

As background, the amended Gun Control Act of 1968 (GCA), 18 U.S.C. § 921(a)(3), defines the term "firearm" to include ... any weapon (including a starter gun) which will or is designed to or may be readily converted to expel a projectile by the action a/an explosive ... [and} ... the ... fame or receiver any such weapon....

With respect to the definitions of "handgun" and "pistol" under Federal statutes and regulations, you may be aware that the GCA, 18 U.S.C. § 921(a)(29), defines "handgun" to mean, in part, ... a firearm which has a short stock and is designed to be held and fired by the use a single hand .... Additionally, 27 CFR § 478.11, a regulation implementing the GCA, defines "pistol" as... a weapon originally designed, made, and intended to fire a projectile (bullet) from one or more barrels when held in one hand, and having (a) a chamber(s) as an integral part(s) of, or permanently aligned with, the bore(s); and (b) a short stock designed to be gripped by one hand and at an angle to and extending below the line of the bore(s).

Please note also that the GCA, 18 U.S.C. § 921(a)(7), defines "rifle" to mean, in part, ... a weapon designed or redesigned, made. or remade, and intended to be fired from the shoulder .... Finally, the National Firearms Act (NFA), defines the term "firearm" to include ... a rifle having a barrel or barrels of less than 16 inches in length ... (and) ... a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches of a barrel or barrels of less than 16 inches in length .... (See 26 U.S.C. §§ 5845(a)(3) and (4))

For your information, per provisions of the GCA, an unlicensed individual may make a "firearm" as defined in the GCA for his own personal use, but not for sale or distribution. Individuals manufacturing a firearm for their own personal use are not required to submit a sample to ATF for approval. However, if the design of the firearm were questionable, it would be prudent for such individuals to seek the advice of ATF prior to manufacture.

Also, based on the GCA, manufacturers' marks of identification are not required on firearms that are produced by individuals for personal use. Nevertheless, ATF recommends the placing of marks of identification on these weapons at the time of manufacture. This procedure would aid law enforcement authorities in identifying the firearm should it become lost or stolen.

With respect to barreling and the assembly of pistols, if individuals utilize a receiver that has never been barreled as a rifle action, they may lawfully assemble a pistol. Such an assembled pistol would constitute a "firearm" as defined in the GCA. If an individual utilizes a receiver that has already been barreled as a rifle action in the assembly of a pistol, such an assembled pistol would constitute a "weapon made from a rifle" as defined in the NFA.

Individuals desiring to manufacture a firearm subject to NFA provisions (machineguns excepted) must first submit and secure approval of an ATF Form 1, Application to Make and Register a Firearm, and pay the applicable $200 making tax.

In your letter, you state that you recently purchased an AR -15 type "stripped" lower receiver with the intention of building it into a pistol; it was shipped as a bare receiver and never built into a rifle. Your specific questions, paraphrased and repeated below, are followed by FTB' s answers.

Question # 1: Am I able to legally construct this lower receiver into an AR-15 type pistol?
A: Yes, since you are utilizing a receiver that has never been barreled as a rifle action, you may lawfully assemble a pistol. However, we advise you to confirm that assembly of such a pistol does not violate any State laws or local ordinances where you reside.

Q #2: Would I be required to register it as an NFA firearm with a tax stamp?
A: No.

Q #3: Do AR-15 type pistols have a restriction on barrel length?
A: No.

Q.#4: Would a 10-1/2 inch or 11-1/2 inch length barrel be allowed?
A: Yes.

Q #5: Can I use standard AR-15 type handguards on the pistol?
A: Yes.

We recently received a copy of a letter dated November 2, 2010 that addressed this issue. The person wanted to know if they had manufactured an AOW with various-length barrels, could a stock and longer barrel be added later for the purpose of hunting or other legal uses.

The ATF first responded with As background, the National Firearms Act (NFA), 26 U.S.C. Section 5845(e), which defines "any other weapon" to include-

... Any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire . Such term shall not include a pistol or a revolver having a rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition.

The first question presented to the ATF was

You transfer an AOW firearm that you manufacture to a customer on an ATF Form 4 and he takes it home. The customer then orders a 20 inch 12 gauge shotgun barrel, magazine tube and shoulder stock. He then removes the 10 inch barrel and pistol grip, and installs the 20 inch barrel, magazine tube and shoulder stock. He has reconfigured the AOW into a sporting firearm; can the owner use it for hunting or target shooting?

The ATF determined that this was legally permissible and stated that Federal statutes do not prohibit the reconfiguring of a legally registered AOW firearm into a sporting firearm and then back into an AOW firearm by the owner.

NOTE that the ATF underlined the words by the owner.

The ATF was also asked:

Can a police department that has purchased a 7. 5 inch breaching gun change the configuration by installing a 20 inch barrel and shoulder stock/or a different mission and then reconfigure it back into an AOW?

and the ATF stated that State and local police departments that have a legally registered AOW
can reconfigure the AOW in any manner the mission requires.

This is a common question which has two answers. First I will address the legal answer.
The NFA restricts transfers of weapons. Normally we would not think of loaning a firearms or placing it in the hands of another person as a transfer, but under a more complete analysis, letting someone else use your silencer or other NFA firearm, is in fact a transfer and a violation of the National Firearms Act.

The NFA defines a transfer and the various derivatives of such word, to include selling, assigning, pledging, leasing, loaning, giving away, or otherwise disposing of.

Many individuals incorrectly read the definition to state that loaning is only when otherwise disposing of, but otherwise disposing of is just another action that creates a transfer and is not a requirement of the previous terms or actions that are included in the definition of a transfer.

Prior to a transfer, the owner, trust, corporation, or individual who has the legal title to the NFA firearm, but pay a tax and receive permission to transfer the firearm.

In addition the NFA states that it is illegal to receive or posses a firearm which is not registered to him in the National Firearms Registration and Transfer record, to transfer a firearms in violation of the law, or to receive or posses a firearm transferred (including loaned per the definition of transfer) to him in violation of the NFA.

The NFA requires no intent to violate the law to create a violation.

So perhaps the better question is Should I let someone else use my silencer? I think the clear answer to this is no, unless it is done in a way that does not create a transfer or a violation of the NFA.

Do people let others use silencers? Yes it is common and probably will not result in a penalty, but unlike speeding, which is done regularly, the fines and potential penalties for transferring a firearm restricted by the NFA is very substantial. The instructions provided with our Gun Trust explain these and other related issues involving inadvertent transfers of NFA Firearms.

We are often asked about traveling to another state with NFA firearms. If you own property in multiple states like Texas and Colorado or regularly travel between Texas and Colorado with NFA Firearms, you can do so, but should and in some cases must obtain prior authorization from the ATF to take these firearms over state lines.

Note:Texas and Colorado are just used as an example of two places that you may regularly travel to and from. A Texas Gun Trust prepared by a Texas Gun Trust Lawyer® would be valid in Colorado and a Colorado Gun Trust prepared by a Colorado Gun Trust Lawyer® would be valid in Texas

There is no charge to obtain the authorization for interstate travel from the ATF. Your Gun Trust should have specific instructions on how to do this and if it does not you may want to have your gun trust reviewed by an attorney to see if it is a gun trust or just a generic revocable trust. Many so-called "Gun Trusts" and those provided by gun stores, found in the internet, created by software, or even some from lawyers, actually provide instructions to break the law. If you gun trust mentions stocks, property, homes, or other non-firearms related items, it may be a clue that you have a generic trust.

It is possible to amend and restate a generic trust with a Gun Trust from a Gun Trust Lawyer® so that your family and friends can understand what their duties and responsibilities are in the event of your death or incapacity. If you would like your trust reviewed under the NFA for these types of issues, please contact us.