NFA Gun Trust Lawyer Blog

If you purchased a GSG 5 SD model with a barrel shroud (Fake Suppressor) ATF has now determined that this is regulated by the NFA and must be replaced.
To all retail customers:

On January 2010 American Tactical Imports Inc received official notification from the Bureau of Alcohol, Tobacco, Firearms and explosives that the original barrel shroud (aka: fake suppressor) supplied with your GSG 5 SD model must be replaced. It has been determined that this shroud is regulated under the National Firearms Act. American Tactical will provide a replacement shroud at no charge for each GSG 5 SD model sold or currently in inventory.

Consumers in possession of a GSG 5 SD model with the original shroud in place on the firearm are now in violation of the NFA. To avoid continued violation of the NFA, ATI asks that all persons in possession obtain a replacement shroud as soon as possible. We anticipate arrival of the new shrouds to begin by the middle of February 2010.

IMPORTANT: THE ORIGINAL SD MODEL SHROUD MUST BE RETURNED ACCOMPANIED BY THE FIREARM SERIAL NUMBER BEFORE A REPLACEMENT SHROUD IS ISSUED. THE DIAMETER OF THE SD SHROUD IS 1-9/16". DO NOT RETURN THE SMALLER CARBINE SHROUD.

WHAT TO DO:
If possible return your old shroud to the dealer where purchased and show him this notice. The shroud will be returned to ATI along with a list of serial numbers from the guns that the shrouds were removed. ATI will send replacements to the dealer for pick up at your convenience; ATI will be sending replacements as fast as logistics allow. If your dealer is out of business or difficult to reach, or you purchased your gun used, from a consumer, return the shroud directly by US mail or UPS to American Tactical Imports Inc. 100 Airpark Drive Rochester, NY 14624.

PLEASE TRY NOT TO CALL US. We will provide comprehensive information on our web site www.americantactical.us or by e-mail to atiexchange@americantactical.us

REMEMBER, INCLUDE THE FIREARM SERIAL NUMBER WITH EACH SHROUD OR A REPLACEMENT WILL NOT BE ISSUED.

This action IS NOT being instituted through any fault and is strictly due to NFA compliance. American Tactical will assume the responsibility to satisfy the requirements in an effort to minimize the impact on our customers and protect your investment.
We at American Tactical Imports Inc. sincerely apologize for any inconvenience caused by this unfortunate situation.

Sincerely,
Anthony DiChario
President C.E.O.

The ATF has recently made a decision to review Trusts for legal sufficiency. While this may slow things down for those using generic trust for NFA purchases (Quicken, Legal Zoom, Gun Store Trusts) I think its a good idea and will protect many from unknowingly violating the NFA.

We have seen several issues where the ATF is declaring trusts to be invalid that are in fact valid under various state laws. They claim they are not practicing law in those states and will not give legal advise. They suggest that you have the trust reviewed by a lawyer to tell you why it is invalid or make changes to the trust to make it valid.

If your trust was rejected by ATF we can help by reviewing and or amending the trust with our network of 75 attorneys in more than 40 states.

The NFA defines who can own a Title II firearm as a natural person, corporation or trust.... When an individual makes application to own a Title II firearm they are the only person who can be in possession or have access to the firearm. This creates a problem for many individuals who are married, have others who know the combination or how to gain access to the items, or want to allow others to use the firearms, even in their presence.

Joshua Prince has written and excellent analysis of the case law surrounding constructive possession and the US v. Turnbough case which stated that the Government may establish constructive possession by demonstrating that the defendant exercised ownership, dominion or control over the premises in which the contraband is concealed. Joshua goes on the state that if a spouse or other person does have the combination to the safe where the NFA firearms are kept it would be virtually impossible for the prosecutor to show that the other individual knowingly has the power to exercise dominion and control over the firearms.

The real problem occurs when another does have access to the items or can exercise dominion and control over the NFA firearm because the prosecutor can then charge that individual with constructive possession. In US v. Turnbough, an illegal firearm was in Turnbough's home and the court of appeals found that a reasonable jury could have found that he, his live in girlfriend, and her child could conclude that all three parties exercised dominion and control over the gun and the possession could be either sole or joint.

While there are not any constructive possession cases involving NFA firearms this does not mean that the BATFE could not bring a charge of constructive possession against a spouse or other person who could exercise dominion and control over an NFA firearm.

Remember that there is no intent element to violate the NFA. Like speeding, you do not have to intend to speed to be charged with speeding.

So how can you protect yourself, your family, and your friends? If you use a NFA trust or other allowable business entity to own the items, you can allow others to be in possession, use, purchase, and know how to access the firearms.

There are many downsides to using a business entity to own NFA firearms. In most states, there are yearly state fees associated with the entity. In addition, you must deal with loss of privacy, EIN's, and federal tax compliance for the entity. The ATF only recognizes those on the official state records as having access to the items. The entity will be subject to probate upon the death of any owner. There are typically costs associated with updating the state records to allow for changes in possession and it takes time to make these changes. There are no provisions in a business entity to deal with incapacity or death in determining whom the beneficiaries are, where they live, if they are qualified to receive the items, directions on how to properly transfer the ownership and items, and most importantly if the beneficiary is mature and responsible enough upon your death that you would want to put the firearms in their hands.

Because a trust deals with these items on a regular basis, a NFA Trust (different than the traditional Quicken, Legal Zoom, or lawyer prepared revocable trust) can provide the ability to easily add, remove, or modify the users, owners, and purchasers as well as deal with the unique issues of firearms ownership that are not present in other types of ownership.

We work with more than 75 lawyers in over 43 states that can help you design a NFA trust to meet your specific needs and goals. Our NFA trust does not use a schedule of assets so your other firearms that are placed in the trust do not become know to the ATF upon the purchase of a Title II firearm from a Class 3 dealer or individual.

If you have any question on how a NFA trust can help you purchase Title II firearms and protect your family and friends from the criminal penalties associated with improper possession, purchase, use, or transfers please contact a Gun Trust Lawyer and we would be happy to answer your questions. In Florida please contact our Florida Gun Trust Lawyer.

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.

I have a client who is looking to purchase a Thompson Machine Gun in Florida.  If you are not in Florida, there is a local transfer agent willing to help out.  If you have one for sale or know of one at a good price please let us know.

On Thursday December 11th, 2008 the Apple Law Firm will be providing training to the management and sales people at Shooters in Jacksonville Florida on the benefits and advantages of using an NFA Trust to purchase and hold Title II weapons under the NFA.  If you have a Gun Store and sell Title II firearms please contact a  Gun Trust Lawyer to schedule training for your staff.

There are several type of Class 3 items that are restricted by the National Firearms Act.

Each state can impose additional restrictions on the sale, purchase, and transfer of class 3 firearms in addition to the compliance that is required with the national Firearms Act.

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

Machine Guns *
Any Other Weapon (AOW)

In New Jersey you cannot own the following NFA restricted items.

Silencers
Short Barreled Shotguns (SBS)
Short Barreled Rifles (SBR)
Destructive Devices (DD)

Follow this link to find out more about New Jersey and NFA restrictions on Class 3 Firearms

* Machine guns - Onwership for persons is regulated under N.J.S. 2C:58-5
NOTE: In New Jersey, AOW's are limited

There are several type of Class 3 items that are restricted by the National Firearms Act.

Each state can impose additional restrictions on the sale, purchase, and transfer of class 3 firearms in addition to the compliance that is required with the national Firearms Act.

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

Machine Guns
Silencers
Any Other Weapon (AOW)
Destructive Devices (DD) (except bombs)
Short Barreled Shotguns (SBS)
Short Barreled Rifles (SBR)

In Pennsylvania you cannot own the following NFA restricted items.

None but all Bombs are prohibited as Offensive Weapons

Follow this link to find out more about Pennsylvania and NFA restrictions on Class 3 Firearms

Violations of the NFA are punishable by 10 years in prison, forfeiture of all devices or firearms in violation, and the individuals right to own or possess additional firearms in the future.  In addition, there is a penalty of $10,000 for each of certain violations.

In addition, a willful attempt to evade or defeat a tax imposed by the National Firearms Act is also a felony which is punishable by up to 5 years in Jail and a $100,000 fine under the tax evasion statutes.  This penalty could be increased to $250,000 for individuals and $500,000 for corporations.

This means you could be looking at a maximum of 15 years in Jail and $510,000 in penalties for a violation.   Many violations can be avoided by proper ownership and knowing who can be in possession and use the Title 2 firearms which are restricted under the NFA.

There may be additional state penalties in addition to the federal one mentioned above.  A properly constructed NFA trust is the best way to own these items and permits the best flexibility as to possession and use.  Although a Revocable trust can provide benefits many individuals create invalid trusts or trusts that do not address the specific issues that relate to NFA weapons ownership and subject themselves to potential violations. 

To create a Valid NFA Firearms Trust that addresses your specific family situation, please CONTACT A NFA lawyer.

While the public perceives NFA weapons as dangerous Guncite.com reports that there have only been two murders since 1934 involving legally registered Machine Guns and one of those was by a police officer.

There are several type of Class 3 items that are restricted by the National Firearms Act.

Each state can impose additional restrictions on the sale, purchase, and transfer of class 3 firearms in addition to the compliance that is required with the national Firearms Act.

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

Silencers
Any Other Weapon (AOW)
Destructive Devices (DD)

In Washington you cannot own the following NFA restricted items.

Machine Guns*
Short Barreled Shotguns (SBS)*
Short Barreled Rifles (SBR)*

NOTE:* Not legal to own or possess parts that can make these firearms unless these items were legally acquired prior to July 1, 1994 and be in compliance with federal law or machine Gun, Short Barreled Shotgun, or Short Barreled Rifle but be possessed by by peace officer for official duty, armed forces, or person in compliance with NFA who has undergone Fingerprint and background check who in engaged in the production , manufacture, repair, or testing of Machine guns, SBR, or SBS

Follow this link to find out more about Washington and NFA restrictions on Class 3 Firearms

Note: Although you can own a silencer, it may not be used on a gun. Also for other class 3 items a state license is required in addition to the requirements under the NFA

There are several type of Class 3 items that are restricted by the National Firearms Act.

Each state can impose additional restrictions on the sale, purchase, and transfer of class 3 firearms in addition to the compliance that is required with the national Firearms Act.

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

Machine Guns 
Any Other Weapon (AOW) (except Pen Guns) *1
Destructive Devices (DD)
Short Barreled Shotguns (SBS)
Short Barreled Rifles (SBR)

In California you cannot own the following NFA restricted items.

Silencers
Pen Guns

*1 AOW's other than Pen Guns are ok as long as they are not an assault weapon.  With the exception of AOW assault weapons that were owned prior to the registrations period are ok.  AOW's are not required to receive a Curio or Relic classification.

Note In California most Class 3 items other than AOW's must be classified as a Curio or Relic  (C&R).

SBS and SBR, that are C&W  as well has AOW's as described above do not require any special state permits.

Permits for Machine guns and DD's are controlled and at the sole discretion of the DOJ and are rarely issued to civilians or anyone who is not involved in the movie industry.

CA's Assault weapons laws apply to assault weapons whether they are C&R or not.  An assault weapon in Ca if meets certain requirements found in the statutes. One of these is  semi automatic center-fire rifle with  the capacity to accept a detachable magazine that has an overall length of less than 30 inches is an AW.  This would mean if you made (through a form 1) a SBR out of an M1 Cabine, it would likely be considered an AW under California law.

Follow this link to find out more about California and NFA restrictions on Class 3 Firearms

There are several type of Class 3 items that are restricted by the National Firearms Act.

Each state can impose additional restrictions on the sale, purchase, and transfer of class 3 firearms in addition to the compliance that is required with the national Firearms Act.

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

Machine Guns
Silencers
Any Other Weapon (AOW)
Destructive Devices (DD)
Short Barreled Shotguns (SBS)
Short Barreled Rifles (SBR)

In Arkansas you cannot own the following NFA restricted items.

None

Follow this link to find out more about Arkansas and NFA restrictions on Class 3 Firearms

There are several type of Class 3 items that are restricted by the National Firearms Act.

Each state can impose additional restrictions on the sale, purchase, and transfer of class 3 firearms in addition to the compliance that is required with the national Firearms Act.

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

Machine Guns
Short Barreled Shotguns (SBS)
Short Barreled Rifles (SBR)
Any Other Weapon (AOW)

In Missouri you cannot own the following NFA restricted items.

Silencers
Destructive Devices (DD)

Follow this link to find out more about Missouri and NFA restrictions on Class 3 Firearms

If you live in a city in where the Chief law Enforcement Officer (CLEO) will not or easily sign a Form 4, there are several solutions.
Class 3 Weapons include suppressors, , short barrel rifles, machine guns, and other destructive devices.

The most common solution is to create a NFA revocable trust to hold title to the firearm or class 3 items. A NFA Gun Trust, Class 3 Firearms Trust, Florida Limited Liability Company, or Florida Corporation is a legal entity established under state law.

For NFA purposes many individuals prefer the a Revocable Trust over a corporation or LLC because the cost is far less on an ongoing basis. Business entities typically have state filing fees of around $150 a year. In addition there are the costs of tax preparation, compliance and filings with the IRS. In Florida and many other states Revocable Trusts like the NFA or Firearms trust do not require any disclosure or public filings. This means the ownership, control, and management is private. Although most Florida Revocable or Living Trusts can hold firearms or other class 3 items, many are not properly setup to deal with the issues involving firearms and other items which are regulated by the National Firearms Act (NFA). If the NFA is violated, the people in possession, and who transferred the items are subject to criminal charges, substantial fines, and forfeiture of not only the class 3 items in question but all firearms in the possession or ownership. ($250,000 penalty, 10 years in prison, and forfeiture of items) The gun or firearms trust must give the Trustee instructions and special powers so that they can legally manage for unplanned events. Weapons and other assets in a Firearms Trust can not be distributed like other assets upon the death or incapacity of the person who placed the items in the trust(The Grantor or Settlor). There are many advantages to a firearms trust, if you own or plan to purchase a class 3 items you should contact a lawyer who is familiar with these issues and can design a trust to protect you and your family from liability. If you are in Florida you can contact me and if you are in another state I would be happy to get you in touch with a lawyer in your state who can provide information on NFA Gun Trusts.