Articles Posted in ATF / BATFE

While at the NRA Firearms Law Seminar in Nashville,  ATF ‘s attorney William Ryan made some interesting comments about the ATF, NFA, GCA and Gun Trusts:

  1. A trust can be a beneficiary of a will or other trust and obtain a tax free transfer using a Form 5 if the trust or will is drafted correctly.
  2. A Trust can be a beneficiary of a will if there is an order from the probate court directing the distribution to a trust, otherwise one might have to transfer to an individual on a Form 5 and then pay $200 to transfer items to a trust.
  3. ATF is still reviewing the 9500+ comments filed on 41P.
  4. ATF is not concerned about an executor being a prohibited person. (This seems to conflict with the original reason for 41P in the first place.)
  5. ATF likes lawyer drafted trusts, most trust problems are from gun store trusts, free trusts, or trust form that individuals try to create themselves.
  6. ATF examiners do not know the law, and have often made mistakes that can be cleared up by having your lawyer contact their legal department.
  7. ATF has seen many trusts which name the same individual as the beneficiary. It would appear that all of those people are just copying  the trust from someone else.  They believe that one day this random person could inherit thousands of NFA firearms.
  8. Between 2003 and 2012 trust applications increased 80,000 %.
  9. ATF stated that Gun Trusts can purchase and own both Title I and Title II firearms (those under the GCA and NFA).

With the recent increase in poorly written online trusts that have become available, ATF feels there will be a big business in fixing them down the road for those who have unknowingly received the free or fill in the blank trusts.

One of the worst examples of an online trust we have seen is the Easytrust being promoted by Silencerco.  According to them, there may be as many as 1000 people who have already received this trust which contains numerous problems. For a trust that is only 4.5 pages long, it appears to have even more problems than a Gun Trust drafted from Quicken.  The list of problems is huge, but the biggest problems include:

  • The trust permits NFA violations throughout the document.
  • The trust permits any trustee to sell your guns without your consent.
  • The Trust permits trustees to take away your gun rights if in their opinion you can’t handle your own affairs.
  • The trust directs distribution to beneficiaries upon your death without any written permission (a violation of the NFA)
  • The instructions incorrectly state that the trust needs to be registered in many states where it does not (seems to be similar to the problem we reported with the quicken trust)
  • Directs you to obtain an EIN number for their trust when it is not necessary.

I guess you get what you pay for.  Some people are only concerned about purchasing items and do not think about the consequences to themselves nor others.  It is wise to do a little research on Gun Trusts and learn why you would want a Gun trust for all your firearms and not one limited to NFA Guns like Easytrust or many other trusts which are not supported by lawyers.

Joshua Prince, a PA Gun Trust Lawyer, has written about the ATF statements on his blog Shocking Statements/Concessions by ATF at the NRA Firearms Law Seminar

ATF has a history of approving Form 4 transfers to invalid trusts.  Today,  I received another example of an invalid trust that ATF had already approved a transfer for a suppressor.  As more people are learning about gun trust we are seeing more poorly written and in some cases invalid gun trusts.

Most invalid trusts are invalid because they do not name a beneficiary or someone lists themselves as the beneficiary. With the trust we received today, the trust did not meet the minimum signing requirements for the state where it was created.

I recently purchased a trust from a major suppressor manufacture, that had the same problem and while I live in Florida, the trust that was created online would would not be valid in Florida.  In addition, I made a typographical error entering the information and my repeated attempts to contact the company to fix the issue have been ignored.  For a company who prides themselves on customer service, this has been disappointing.   For the time being we would warn people to stay away from “easytrust” which is being advertised by a suppressor manufacture.  The trust  has many of the  problems associated with traditional trusts that can create liability for the trustees and beneficiaries of a poorly written gun trust and the one I received would not be valid in my state unlike their claims.

While talking with the client of the invalid trust, it turned out that he  had received the trust from a friend of his who told him it was prepared by a lawyer.  It would appear that the trust was not prepared by a licensed attorney or the lawyer was not familiar with trust law, gun law, or both.  A Gun Trust is very different than a revocable trust and one needs to consider each and every power and instruction in a trust and how they will interact with firearms owners and their desires to draft a well written gun trust.

With many online gun trusts popping up it is important to realize that a trust is not valid, nor is possession legal, just because the ATF approves a transfer.  If you have an invalid trust and are in possession of a firearm restricted by the NFA, you in violation of the NFA and could face both civil and criminal penalties.

A few benefits of a properly drafted Gun Trust include:

  1. The ability to tell your representatives how to properly transfer these firearms upon your death regardless of the state that they live in;
  2. The ability to move states and maintain a trust that is easily recognized as valid in other states;
  3. The ability to deal with co-trustees and beneficiaries in multiple states;
  4. The ability for your minor children to use the NFA firearms with adult supervision and parental consent;
  5. 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;
  6. The ability to make unequal distributions so that firearms do not have to be liquidated to give equal distributions;
  7. The ability of the Trustee to refuse assets transferred by will or other means when  the NFA and state requirements are not complied with; Continue reading

What’s the Story Behind ATF “Banning” 5.56mm Ammo? (. . . and what can you do about it?)

By Glenn D. Bellamy, Armorer-at-Law®
March 5, 2015

There’s been no shortage of misinformation and hyperbole about an ATF memo released on February 13th reported to “ban AR15 ammo.”  The memo describes a “framework” by which ATF proposes it would consider requests for “sporting purpose” exemptions under the federal statute banning the manufacture, importation or sale (but not possession) of “armor piercing” projectiles.  I’ve searched and research the law and the facts behind it with passion over the last two weeks. I’m tempted to write a legal brief in opposition, or at least to give it a thorough fisking.  But that would bore you and be wasted on the ATF at this point.

Instead, I’ll give you the skinny on what’s going on and the most effective thing(s) you can do about it.

The Skinny

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Today, the ATF stated that the time to process paper Form 1 and Form 4s – 6 months. Our feeling is that the backlog for paper forms is closer to 4 months when you consider that the eForms are only taking around 30 days and make up a substantial portion of the filings.

The ATF is continuing to hire more help, cross train more staff, and process more forms than they receive. In the last 11 months the ATF has reduced the backlog from 81,000 in Feb 2014 to 38,000 as of Jan 15, 2015.

There is still no update on eFiling of ATF Form 4, but hope to have it addressed by late 2015.
For those with Gun Trusts, there is a new update to the eForms 101 as of Jan 15, 2015.

The link to the update can be found here.
eFormsNews 1-15-15.pdf

Here is the latest letter from the ATF that we received at 4:36 PM EST today regarding the SB-15 and Stabilizing braces. It seems to deal with “intent” but also introduces a new concept of “redesign” in an attempt to bolster the concept that use of a firearm can change the classification of it.

Our recommendation remains the same, for a $200 tax stamp why take the legal and financial risk.

The Firearms and Ammunition Technology Division (FATD), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has received inquiries from the public concerning the proper use of devices recently marketed as “stabilizing braces.” These devices are described as “a shooter’s aid that is designed to improve the single-handed shooting performance of buffer tube equipped pistols.” The device claims to enhance accuracy and reduce felt recoil when using an AR-style pistol.

These items are intended to improve accuracy by using the operator’s forearm to provide stable support for the AR-type pistol. ATF has previously determined that attaching the brace to a firearm does not alter the classification of the firearm or subject the firearm to National Firearms Act (NFA) control. However, this classification is based upon the use of the device as designed. When the device is redesigned for use as a shoulder stock on a handgun with a rifled barrel under 16 inches in length, the firearm is properly classified as a firearm under the NFA.

The NFA, 26 USCS § 5845, defines “firearm,” in relevant part, as “a shotgun having a barrel or barrels of less than 18 inches in length” and “a rifle having a barrel or barrels of less than 16 inches in length.” That section defines both “rifle” and “shotgun” as “a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder….” (Emphasis added).

Pursuant to the plain language of the statute, ATF and its predecessor agency have long held that a pistol with a barrel less than 16 inches in length and an attached shoulder stock is a NFA “firearm.” For example, inRevenue Ruling 61-45, Luger and Mauser pistols “having a barrel of less than 16 inches in length with an attachable shoulder stock affixed” were each classified as a “short barrel rifle…within the purview of the National Firearms Act.”
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Thumbnail image for sig_arm_brace_sb15.jpgWe are all familiar with the inconsistency of the ATF. The ATF has changed their position on the Sib Brace (SB-15) with a pistol. While the ATF, still states that it is legal to use the SB-15 as intended (strapped to your wrist), they have reversed their position on using the SB-15 when shouldered.

You may remember that earlier this year, ATF stated that since the SB-15 is not intended to be fired from the shoulder, the misuse of an individual would not change the classification of the firearm. See the March ATF SB-15 letter

We believe that this is the correct decision and interpretation. The problem is that someone else recently asked the same question and got a very different answer. ATF has now stated that the misuse of the SB-15 (being fired from the shoulder) does create an SBR and make the pistol subject to the NFA.

sig brace letter 01.jpg
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Unlike most states which have changed the laws, In Florida you can hunt with Suppressors starting today.

This morning the following announcement was sent out by Marion Hammer the Executive Director of the SSF and past president of the NRA

DATE: November 21, 2014 TO: USF & NRA Member and Friends FROM: Marion P. Hammer USF Executive Director
NRA Past President
At their meeting in Key Largo, Florida, today, the Florida Fish and Wildlife Conservation Commission voted to remove the ban on using silencers/suppressors on pistols and rifles for hunting deer, gray squirrels, rabbits, wild turkeys, quail and crows.

Using silencers/suppressors on pistols, rifles and shotguns for all other legal hunting was already allowed.

Following the suppressor vote, the Commission also voted to authorize an Executive Order to lift the ban immediately and allow hunting with suppressors to being at once.

Following that vote, Executive Order # EO 14-32 was signed. Using suppressor-equipped rifles, pistols and shotguns is now legal for all hunting in Florida.

I would expect a huge increase in Suppressor sales like we have seen in other states after permitting hunting wihit suppressors

In the last few days a letter has surfaced on the Internet reportedly written to a small shotgun maker, which states that shouldering a Sig Sauer SB 15 pistol stabilizing brace could change a firearms classification to a short barrel shotgun.

The letter was written in response to Black Aces Tactical’s request related to a short-barreled shotgun that was designed to incorporate the SB 15 Brace. Black Aces Tactical submitted a sample which they say had an overall length of 27 inches. The sample had a SigTac SB15 arm brace attached as well as a vertical foregrip. The brace is intended to allow a shooter to fire and an AR pistol with one hand using a Velcro strap to attach to the arm.
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Great news! The ASA is reporting that the time to process a Form 4 with a Gun Trust has continued to decrease and looks like the time will continue to decrease. Less than a year ago the average wait time was in excess of 12 months. A few months ago the time was reduced to 6-9 months. The current time is 4-6 months, and if you are processing a trust now, you could see an even shorter time as ATF clears their backlog. ATF is continuing to hire and train more people to process the increasing number of ATF Form 4s and Form 1s.

Even better news is that we may see a new electronic Form 4 announced in January at the Shot Show.

41P UPDATE
ATF has indicated that they are not expecting a final ruling on 41P until May 2015 at the earliest. Those of you in panic mode to submit your Form 4s, you may have some extra time. There are over 9000 comments that were filed during the comment period. To read some fo the comments follow this link http://www.regulations.gov/#!docketDetail;D=ATF-2013-0001

To read the https://www.guntrustlawyer.comment and the other Major comments to 41P see our 41P comment page

ATF is pleased to announce the availability of revised ATF Form 1, Application to Make and Register a Firearm, and ATF Form 5, Application for Tax Exempt Transfer and Registration of Firearm.

The ATF Form 1 has been revised to allow the payment of the making tax by use of a credit or debit card. This is a new option that was requested by the industry. Payment by check or money order will still be allowed when the application is submitted on paper.

The Form 1 and Form 5 have been revised to incorporate the questions relating to non-immigrant status that are contained in ATF Form 5330.20, Certification of Compliance with 18 U.S.C. 922(g)(5)(B). Form 5330.20 is to be submitted when the applicant maker is an individual, not a legal entity. With a submission of the revised Form 1, the submission of Form 5330.20 will not be required. This revision was also requested by the industry.

For eForm filings, the prior version of the Forms 1 and 5 will continue to be used until we are able to update the form versions in the eForms system. Since the eForm 1 may only be filed by legal entities or government agencies and the eForm 5 is for transfer by a qualified Federal firearms licensee when the transferee is a government agency, the answering of the questions is not required as they are for an individual applicant maker or transferee.

When these forms become available we will post links to them and provide instructions for completeing them.

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