December 23, 2013

Do I need a Gun Trust to buy a Suppressor, if I already have a revocable trust?

We often get questions from people about using a regular trust or existing trust that they already have to purchase a suppressor. First a trust or Gun Trust is not required to purchase a suppressor. A suppressor is a Title II firearm, that is sold by a Class III FFL. It can be purchased by an individual, trust, or business entity. Currently, an individuals must obtain a CLEO signature as well as provide fingerprints with the application to purchase a suppressor. Any purchase from an individual, trust, Gun Trust, or business entity must pay a $200 tax stamp and complete an ATF Form 4.

That being said, a Trust or Gun Trust has many other benefits besides the CLEO and fingerprint submission.

  1. A Gun Trust may submit an application electronically and between 2-6 months in processing.
  2. The ability to tell your representatives how to properly transfer these firearms upon your death.
  3. The ability to transfer assets to children, even below the age of 18, when they reach an appropriate age while giving the someone the ability to make distribution decisions based on mental state, physical location, legality of the transfer, and age.
  4. The ability for the Trustee to refuse assets transferred by will or other means if NFA and state requirements are not complied with.
  5. Requirement to comply with NFA and State laws for transfer of NFA related assets.
  6. The ability to make uneven distributions to heirs to conserve value of assets.
  7. The ability to purchase Title II firearms, without creating a violation of the duties of the trustee.
  8. The ability to use the firearms in the trust without creating liability to the beneficiaries.
  9. The instructions and formalities on how to: manufacture items under a Form 1, how to purchase items correctly under a Form 4, how to properly document and transport Title II firearms with a Form 20.
  10. Protection for yourself and your family from Constructive Possession - a violation of the NFA.
  11. The ability to add others to your trust at a later time and create additional authorized users of the firearms.

Some Gun Trusts can even be designed to include:

  1. The ability to have Trustees with different capabilities.
  2. The ability to protect the firearms from your creditors and the creditors of your beneficiaries.
  3. The ability to hold the firearms for multiple generations and in some cases forever.
  4. The ability to modify the terms of the trust to attempt to preserve privacy, ownership, avoid future transfers and loss of firearms due to future legislation.
  5. The ability to easily add users, remove users, change beneficiaries and create temporary users of the firearms.
  6. The your representatives how to properly transfer these firearms upon your death.

So while a regular revocable trust could be used to purchase NFA firearms, a regular trust is designed for financial assets and would often instruct those who survive you to dispose of the firearms in ways that could create legal issues for your family and friends. In addition, the firearms could be sold off to pay your bills or funeral expenses instead of using other cash or assets that may be available.

A Gun Trust is a very specific type of trust that is designed for NFA and non NFA firearms. Before hiring someone to create a Gun Trust or purchasing a NFA Gun Trust, you should check to understand what you are getting because not all gun trusts are the same. Many so called "Gun Trusts" or "NFA Trusts" are regular revocable trusts that are designed for bank account and land and have little to do with firearms.

If you have a trust that you would like reviewed for issues dealing with the NFA, we would be happy to do so at no charge. We will not be reviewing the state issues but federal issues.

December 14, 2013

NRA-ILA's Comment to 41p

While the NRA's comment is only 17 pages it incorporates many comments and references many including mine. On page one of the NRA's comment they state

Many Hundreds of comments already published in opposition to 41P exhaustively catalog its various problems and potential for absurd consequences. For example, a comment submitted by David M. Goldman details how 41P is based on an unsophisticated and inaccurate view of the law governing trusts and estate planning.

The NRA's comment primarily leads with the following 3 issues.

  1. It is illegal for the BATFE to impose requirements that it is not authorized to do.
  2. The requirements could block those who are lawfully entitled to possess NFA firearms from doing so.
  3. ATF failed to justify the costly and consequential changes that 41P would pose.
To review the full comment please see my 41P comment page.

*[I have slightly modified that the NRA states as the Florida Bar as well as many other reserve the word specialize or expert for someone who has been board certified and while most states offer board certification in estate law, none offers such a designation for gun law. While I focus on Gun Trust and gun law, it would be wrong to refer to me an expert or to say I specialize because it would indicate board certification.]

December 11, 2013

Final action on 41P not expected until 6/2014

While ATF could change what is published, they have updated their Unified Agenda Statement for 41P to show that Final Action is not expected until June of 2014.

This date could continue to roll forward or with enough political pressure the date could be moved up. The June date should be thought of a target date that may or may not change as we get closer to it. You might think of it like "average life expectancy". You could die sooner, you could die at the average age, or you could live many years longer than the average. Also it is important to remember that just because we hit an implementation date does not give us any better idea of what may be implemented.

.41p-final.jpg

This is good news for those of you wanting to purchase items or form a Gun Trust prior to the implementation of new rules or regulations. There is still no word on what ATF is expected to do in June.

If you do not have a Gun Trust yet, now is the time to get one by requesting more information on the contact form on this page.

December 10, 2013

Firearms Industry Consulting Group posts comprehensive comment to 41P

Joshua Prince and Tom Odom have put together over 400 pages of comments and exhibits. Below are the broad topics that their extensive comment covers. If you enjoy reading about the Second Amendment, you will enjoy the extensive research and history that is included in this document. Joshua said they were able to shave off 40 or 50 pages by incorporating my comments by reference. I have included their conclusion below for you to read.

  1. PROCEDURAL IRREGULARITIES HAVE DENIED INTERESTED PERSONS A MEANINGFUL OPPORTUNITY TO COMMENT ON THE PROPOSED RULEMAKING
  2. ATF'S PROPOSED RULE RAISES IMPORTANT CONSTITUTIONAL ISSUES
  3. ATF'S PROPOSAL EXCEEDS ITS STATUTORY AUTHORITY
  4. POLICY CONSIDERATIONS DO NOT SUPPORT ATF'S PROPOSED RULE
  5. LESS BURDENSOME ALTERNATIVES TO ATF'S PROPOSED RULE
  6. CONCLUSION

Below is a reprint of the conclusion to their Comment on 41p. Remember this comprehensive comment was submitted with over 400 pages of exhibits.

ATF has made a mockery of this proceeding, engaging in numerous tactics designed to deny meaningful public participation. As a result ATF cannot promulgate any final rule that hopes to survive judicial review without starting fresh. In doing so, ATF should consult with a broad cross-section of interests familiar with the laws governing trusts, estates, and business entities rather than a select few. Independent of such problems, moreover, there is ample reason to question whether ATF regulation of certain firearms under the NFA is consistent with the Second Amendment and federalism concerns. ATF's proposal stretches far beyond any statutory authority. If ATF were to overcome those problems, the fact remains that its proposal is built upon statistically invalid assumptions and false premises. ATF failed to quantify any benefit from the proposed rule and substantially under counted the cost it would impose, including a failure to consider at all some of the largest costs. The proposed rule is demonstrably unworkable and many less-burdensome alternatives exist to address any legitimate concerns.

Even the one portion of the proposal that heads in the right direction -- dealing with decedent's estates -- fails to define terms with sufficient specificity as to permit meaningful comment. If that section is intended to codify existing ATF practices, it fails in several key respects. Alternatively, if that section is intended to depart from ATF's established practices, there is no stated justification for doing so and the result is a proposal that is internally inconsistent in the manner in which it treats fiduciaries.

To download their full comment please visit our 41P Comment page at http://www.guntrustlawyer.com/41p.html.

December 10, 2013

NFATCA Posts comment to 41P

The NFATCA has posted a comment to 41p, requested a hearing and has some unusual arguments claiming must of the proposals and even some of the current procedure is not authorized by congress. IN addition they have an interesting Legal Memorandum prepared by Stephen Halbrook that worth taking a look at.
His memo covers

I. NO AUTHORITY EXISTS TO REQUIRE FINGERPRINTS AND PHOTOGRAPHS OF "RESPONSIBLE PERSONS" OF TRUSTS AND OTHER ARTIFICIAL PERSONS

II. NO AUTHORITY EXISTS TO REQUIRE A CLEO CERTIFICATE
FOR THE TRANSFER OR MAKING OF A FIREARM

  • A. ATF, Not State and Local CLEOs, Is Responsible for Administration of the National Firearms Act

  • B. The CLEO Requirement Unlawfully Forecloses Judicial Review Under the Administrative Procedure Act

  • C. ATF May Not Compel Disclosure of Tax Returns to CLEOs

  • D. The CLEO-Certificate Requirement Violates Principles of Federalism and the President's Responsibility to Execute the Laws

I have include it on my 41P comment page available at http://www.guntrustlawyer.com/41p.html

December 5, 2013

A Client's comments to 41P that were submitted

One of Clients has submitted a comment to 41P and given us permission to post a copy as it is not likely that it will appear on the published comments before the time to respond has closed. You may want to use parts of this comment to help you express your personal experiences or situation.

In summary this comment discusses

  • ATF has failed to show any real benefits from its proposed rule;

  • Costs and expenses involved with 41P are not accurate;

  • Inability to obtain modified CLEO for responsible parties who are overseas and in states where the items are illegal;

  • Costs of complying with proposals with 21 responsible persons;

  • Inability to comply for children who are responsible persons;

  • Responses from various law enforcement agencies around the country;

  • Medical marijuana issues;

  • Circumstances where CLEO signature may not be available within 30 days.

This is another example of a well written comment for 41P. To read our client's comments and view his exhibits visit my 41p page at http://www.guntrustlawyer.com/41p.html

December 5, 2013

Attorney Glenn Bellamy's 41P Comments

Below Summary of the issues covered in Attorney Glenn Bellamy's 41P comments and exhibits:


  1. The Requirement of a local CLEO certification is not statutory in origin and exceeds the ATF's statutory authority, making the proposed regulations vulnerable to attack.

  2. The regulatory requirement of a local CLEO certification imposes a discretionary third party approval that exceeds the statutory authority.

  3. The proposal fails to address many easily anticipated circumstances

  4. The Proposal fails to consider regulatory alternatives that would be more cost effective, serve legitimate statutory objectives, and avoid legal vulnerabilities.

  5. The proposed rules do not address how Form 1,4, and 5 entity applications pending at the time such a rule amendment is implemented would be affected.

This is another example of a well written comment for 41P. To read his comments and view his exhibits visit my 41p page at http://www.guntrustlawyer.com/41p.html

Glenn Bellamy is a Partner with more than two and a half decades of intellectual property litigation, patent and trademark prosecution, and U.S. Customs enforcement experience, first in Seattle and now in Cincinnati. He counsels clients on strategic plans for international Intellectual Property protection of everything from firearms and hydraulic machinery to toys and games. Glenn has litigated Intellectual Property cases throughout the country in federal courts and before the International Trade Commission. Glenn, his wife Renée, and two children live in Symmes Township, Ohio.

November 27, 2013

Cyber Monday Gun Trust Specials Save up to 30%

For those of you who have been thinking about purchasing a Gun Trust we are offering specials on the Base, Advanced, and Professional Gun Trusts.

The Base Gun Trust which you create yourself online and does not come with legal support retails for $349 and has been on sale before for as low as $199 but you can purchase a prepaid code for only $149.

The Advanced Gun Trust is designed for the person who wants a Gun Trust created and customized by an attorney for their specific family circumstances and desires. The Advanced Gun Trust provides the ability to communicate with an attorney regarding federal and state specific issues without any additional costs. Because your specific situation is considered when creating this trust, the Advanced and Professional versions of the Gun Trust can help minimize the potential effects of future legislative and or tax changes that may be associated with transfers during you life and after your death. The Advanced Gun Trust is a revocable trust and very easy to change. Use of this Gun Trust will require a transfer of the firearms at some point after your death. The local attorney's fees and telephone and email support are included in this Gun Trust and the normal price on this trust is between $600 and $750 depending on the state you live in. You can purcahse the Advanced Trust today for the special price of $495

The Professional Gun Trust is our most sophisticated Gun Trust. It is a multi generational, asset protection gun trust that can remain the owner of your firearms forever. This Gun Trust allows future generations to manage and use the firearms without subjecting them to future ATF transfer taxes or claims of creditors. With the current bills before congress many people are concerned about being able to allow their children or beneficiaries to receive the firearms they own. This trust includes the ArmsGuard™ Protector which allows the trust to be changed in the future to deal with future legislative changes that may attempt to restrict rights or the way the Professional Gun Trust works. If laws change next week or 300 years from now, an ArmsGuard™ Protector can be appointed and modify the terms to continue to try and achieve your goals to the extent possible.

The Professional Gun Trust is normally $2500 but you can purchase it today for the special price of $1699. These prices are only available using your credit card or paypal with the buy it now button below. Simply select the trust you want and click the Buy Now Button.




Gun Trust options




November 15, 2013

Michigan Senate panel approves bill to lift ban on short-barreled shotguns and rifles

The Michigan Senate Judiciary Committee on Tuesday unanimously approved legislation that would lift the state's ban on short-barreled shotguns and rifles.

Senate Bill 610 would align Michigan with more than 40 other states that allow residents to own such guns if they meet federal requirements.

The current Michigan regulations prohibit people from manufacturing, selling, offering for sale or possessing a short-barreled shotgun or rifle. There is an exception allowing ownership of an antique gun unlikely to be used as a weapon. Often if the gun is modified it no longer remains the C&R status of an antique gun.

We will keep you updated on what happens and if or when residents of Michigan are able to purchase a SBR or SBS.

October 27, 2013

Gun Trusts and 41P: How can you help?

Today we were on the Tom Gresham's radio show Gun Talk talking about the proposed changes to procedure used by the ATF for obtaining approvals for Form 1s and Form 4s. While talking with him we mentioned that we would post a sample letter that listeners could use to help oppose 41P.

While there are many CLEOs around the country who will not sign a Form 4 or Form 1 regardless of who it is for, the ATF is suggesting that many of those may be willing to sign the Modified CLEO that they are proposing. From those we have spoken to so far, we do not believe that there will be CLEOs available in areas in the future where they are not presently available.

We are asking our clients and others who want to help to send a letter to their CLEO asking if they will sign the modified CLEO signature.

Here is a proposed letter that you can send your local Sheriff. You can modify the letter to fit your situation and circumstances.

Sheriff __________ ADDRESS CITY, STATE ZIP CODE

Re: Completion of ATF Form 4

Dear Sheriff:

I am a resident of _______ County and was wanting to purchase a Suppressor. I understand that the ATF is proposing changing the CLEO certification and was wondering if you will are going to sign the CLEO certification as is being proposed by the ATF.

Do you sign Form 4s currently?

If, indeed, you do not sign any Form 4s for the purchase of a noise suppressor, I must ask whether you anticipate changing that practice in light of ATF's proposal to change the wording of the certification. Currently the Form 4 asks you (or another chief law enforcement officer) to certify that you have "no information indicating that the receipt or possession of the firearm would place the transferee in violation of state or local law or that the transferee will use the firearm for other than lawful purposes." ATF proposes to change the Form 4 so as to request that you (or another chief law enforcement officer) certify that you have "no information indicating that possession of the firearm by the transferee would be in violation of state or local law."

If you do anticipate that you will sign a Form 4 with the revised certification language, I may well wait to purchase a noise suppressor until ATF completes the revision.

Thank you in advance for your attention to this matter.

Sincerely,

(Your signature)

We are looking for responses prior to November 15th so that we can incorporate them into another comment to be filed in opposition of 41P. If you would like to read our current comment, please visit http://www.guntrustlawyer.com/41p.html

October 23, 2013

Sample request and response from local police

In response to 41P we have asked others to send and inquiry to their local police to determine if ATF's proposed changed to the CLEO signature would make a difference in the policy to provide or not to provide signatures on Form 1 or Form 4 applications. Below is the type of response we are looking for to provide in future comments to the ATF. If you have received a response from your local police department please print a copy of your inquiry, the response and draft a short verified statement telling your storey . Sign it under penalty of perjury and then send it to us to be submitted in additional comments that are being prepared.

Response from Orlando Police Orlando-police-letter.pdf


Tuesday, October 22, 2013 2:25 PM
Dear Mr. Myers:

Orlando Police Chief Rooney is out of town on agency business; he asked me to respond on his behalf to your inquiry about proposed changes to the ATF Form 4.

Your communique suggests that ATF believes the language change will make local chiefs and sheriffs more inclined to sign the Form 4.

The current language requires the chief law enforcement officer to certify that he or she has no information indicating that the person to whom the firearm will be transferred will use the firearm for anything other than a lawful purpose.

The proposed change would have the chief law enforcement officer instead certify that:

(1) the prints and photo provided with the form belong to the person responsible; and
(2) the chief law enforcement officer has no information to indicate that receipt or possession of the subject firearm violates state or local law.

Unfortunately, we do not believe the proposed language amendment will change our position with respect to whether the Orlando Police Chief should execute these forms for firearms transfers. It remains our position that the local law enforcement chief executive officer should not be involved in, or liable for, individual firearms transfers.

Sincerely,

--
Lee Ann Freeman
Police Legal Advisor
Orlando Police Department
P.O. Box 913
Orlando, Florida 32802-0913
407.246.2356
407.246.3889 Telefax

October 18, 2013

Gun Trust Lawyer®, David Goldman Comments to ATF 41P

While many people will be waiting to the last-minute to file their comments to 41P, we felt that it was important to file something sooner to provide our clients and readers some guidance on preparing comments. We have created a webpage which contains our comments, exhibits, as well as a copy of 41P as published in the registry. As the comments and exhibits are over 140 pages we have included an index to the comments to help you find the information in which you have the most interst.

While we are very familiar with the NFA and ATF, administrative rule making is not something that we deal with. It is for this reason and to make sure we preserve the right to appeal any outcome that we have hired Tom Odom at the Firearms Industry Consulting Group. They are one of the fine lawyers that we work with around the country. If you are looking to have a professionally written response tailored to your involvement or objectives, I would highly recommend contacting us or them and we would be happy to help with the process.

With the exception of ATF's proposal to add new section 479.90 with respect to decedents' estates, David M. Goldman opposes the remainder of the proposed rule making for the reasons set forth below and in the Exhibits to these Comments incorporated herein by reference.


  • Part I, below, demonstrates that ATF failed to identify any problem for its proposed rule to correct. ATF neither quantified any benefits from its proposed rule (pages 2-5), likely because the proposal predominantly addresses conduct that is already criminalized, nor identified a single example that illustrates the problem that it speculates may exist (pages 5-13). Indeed, there is scant evidence of misuse of registered NFA firearms (pages 13-14).

  • Part II illustrates that trusts serve many legitimate purposes (pages 14-21), establish distinct roles with very different powers with respect to trust assets (pages 21-26), and arise in varied contexts, some of which should ameliorate concerns regarding potential misuse (pages 26-29), but that ATF has not considered these distinctions in formulating its proposed rule. Some trusts specifically designed to hold NFA firearms have numerous safeguards against improper transfer of trust assets that may be more effective than anything ATF proposes yet ATF failed to acknowledge such provisions or explain why some combination of them would be inadequate (pages 29-32).

  • Part III explains how the CLEO certification requirement renders the proposed rule unworkable and demonstrates the need to abandon the certification for individuals as well as legal entities (pages 33-41).

  • Part IV documents ATF's underestimate of the cost of its proposed rule due to understated costs (pages 42-45) as well as omitting altogether lost tax revenue (pages 45-46) and the cost of hearing loss attributable to the greater unavailability of silencers (pages 46-48).

  • Part V details the many less-intrusive alternatives that ATF failed to consider in formulating its proposed rule (pages 48-54), including a more-limited concept of responsible persons and use of modern methods of conducting background checks.


In addition, there are 90 pages of exhibits. If you are looking to review the materials or provide them to others to review, I would ask that you link to this article or the 41P page which is located at http://www.GunTrustLawyer.com/41p.html on our website so that the latest version will be available to those who look. As ATF is not doing anything with comments because of the shutdown, we may hold off on filing our response, but wanted to let others review, comment and use it to help in their responses.

October 18, 2013

Hawaii (HI) What NFA Firearms can I own?

Hawaii NFA Class 3 firearms
There are several type of Title II firearms which are sold by Class 3 SOT FFLs that are restricted by the National Firearms Act.

Each state can impose additional restrictions on the sale, purchase, and transfer of these Title II firearms in addition to the compliance that is required with the National Firearms Act.

In Hawaii you can own the following items that are regulated the the National Firearms Act

Individuals cannot own any NFA firearms which are kept within HI.
State and county law enforcement officers who are not convicted of an offense involving abuse of a family or household member under 709-906 can own and possess Silencers and Machine Guns and Short Barreled Shotguns (SBS) and
Short Barreled Rifles (SBR)
.
In Hawaii you cannot own the following NFA restricted items.
Machine Guns
Silencers*
Machine Guns*
Short Barreled Shotguns (SBS)*
Short Barreled Rifles (SBR)*
Any Other Weapon (AOW)
Destructive Devices (DD)

Follow this link to find out more about Hawaii and NFA restrictions on Class 3 Firearms
Updated 10/18/13

October 17, 2013

What States are Silencers Legal in?

We are often asked are silencers legal in my state? While you can look at which NFA firearms are legal in each state by selecting it in the pull down menu on the right, we have put together this list to make it easy for you to know if they are legal in your state.

Silencers are legal in

AL, AK, AZ, AR, CO, CT, FL, GA, ID, IN, KS, KY, LA, ME, MD, MI, MS, MO, MT, NE, NV, NH, NM, NC, ND, OH, OK, OR, PA, SC, SD, TN, TX, UT, VA, WA, WV, WI, AND WY

Silencers are not legal in the following 10 States.
California, Hawaii, Illinois, Iowa, Massachusetts, Minnesota, New Jersey, New York, Rhode Island, Vermont.

While individuals may not possess suppressors in NY and HI Police officers may have them in certain circumstances

You cannot buy a silencer or bring a silencer to a state where they are illegal, but Silencers can be purchased by residents of states where they are legal. Often authorized users of Gun Trusts are located in different states and while a resident of California cannot purchase a silencer, a Co-Trustee who is a resident of a state where they are legal like Arizona or Nevada can purchase a silencer that is kept in a state where silencers are legal.

If you would like more information on how a Gun Trust Lawyer® can help you protect your rights and own Title II firearms with the use of a Gun Trust Contact Us.

October 17, 2013

ATF eforms back online

ATF is answering their phones and the electronic filing is back online at http://www.atfonline.gov.

ATF reported today that they the payments are back online as of 10/22 but previously reported that they are having problems with the payments. In an email they reported:

This is to advise that ATF eForms is experiencing issues with the pay.gov link that prevents the filing of taxpaid eForms 1 and 4. The pay.gov function had to move to a secondary site last week due to some of its own issues. ATF's firewall security is preventing communications to this secondary site from within eForms. We are in the process of working with the Department of Justice to allow the ATF firewall to communicate with the pay.gov secondary site.

All other eForms may be submitted. eForms 1 and 4 may be created and saved, just not submitted until we have notified you that the issue has been resolved.

We would also like to advise that the taxpaid eForm 1 and eForm 4 were designed for the submission of one firearm per application (as the tax is paid per firearm and the PDF will generate with the transfer tax stamp affixed). A glitch allows the submission of multiple firearms on these forms, but we can only process a form with one firearm on it. Please keep this in mind when you file a taxpaid eForm 1 or 4.

If you have submitted a taxpaid eForm 1 or eForm 4 with multiple firearms on it, please contact Lee Alston-Williams at (202) 648-7166 or Gary Schaible at (202) 648-7165, as corrective action will need to be taken.

Remember the time is ticking before the comment period for 41P closes.