Articles Posted in ATF / BATFE

This weekend, I was shocked to read an article on Facebook that was from a popular gun website that instructed people that they did not have to engrave a firearms that they “made” using a Form 1 unless they were going to sell the firearm.  This author claims to have asked ATF a question and received a response from an individual who is associated with the ATF.

This is equivalent to asking a police officer to interpret the law.  Not only do they often make mistakes, but you cannot reply on what they tell you, because they are permitted to lie to you.

The biggest issues seems to be the confusion between the definitions for the words “Make” and “Manufacture” as defined in 27 C.F.R. 479.11

41F was published today in the Federal Register.  Here is a Link to 41F as filed which is similar to the draft that has been circulating.

Our Gun Trusts are fully 41P compliant and ready.  If you have a gun trust from a Gun Trust Lawyer® (with our copyright information on it) your trust is fine to use and will not have problems with 41F.

Some people will want to make some changes to their Gun trusts based on the new requirements of 41F.  Contact a Gun Trust Lawyer® to help you amend or amend and restate your current trust to help protect you and your family and deal with 41F in the manner you desire.

Recently the ATF updated their final action date from December 2015 to January 2016.  For a complete list of articles and issues on ATF-41P see our 41P update page.

The most significant comments are listed on the 41P page link above.  What does the update mean? We believe that ATF will attempt to move forward with changes sometime within the next few months.  If you are considering forming a Gun Trust for NFA purchases, now may be the time to create your gun trust before changes are made.

Many people have been reporting that 41P will end the opportunity to take advantage of the benefits of a Gun Trust.  This is simply not true, it will not end gun trusts nor do away with many of the advantages of a gun trust.  ATF is talking about making responsible parties provide a modified CLEO authorization and other information, but this proposal was made prior to the ATF stating that the person purchasing an item with a Gun Trust sill needs a NICS check. The new position on the NICS requirement seems to do away with the CLEO certification as it is more comprehensive.

Can_Cannon_Production_2Many of our Gun Trust Clients have purchased a Can Cannon.  Previously the use of a Can Cannon was not regulated by the NFA, but recently the ATF determined that the use of the Can Cannon in conjunction with a receiver or a pistol creates an item regulated by the NFA.  This may be problematic if the NFA item is not legal in your state, but if they are legal there may be a relatively inexpensive way to solve the problem for those who already have an SBS.

X Products warned their customers that the ATF evaluated the Can Cannon and determined that it would be considered an SBR if placed on a rifle receiver, and an AOW if used on a pistol AR. See the ATF letter on the Can Cannon. The ATF has defined the Can Cannon as a shotgun. However, the device by itself is not a firearm and is perfectly legal to own. Attaching it to a firearm is illegal unless the user has the proper federal licenses.

If you have an SBS, you can add the Can Cannon as an additional configuration to your SBS by using this Additional Configuration Form we have prepared for use with our Gun Trusts, SBSs and multiple configurations.  Here is a link to using multiple configurations with a Form 1 for those not familiar with it

We are often asked if you have to be 21 to build an SBR or Suppressor.  If you are manufacturing a firearm under the NFA using an ATF Form 5320.1  you only need to be 18 under federal law.  Likewise, if you are purchasing a firearm using an ATF Form 4 from an individual, trust, or non FFL you only need to be 18 years old.  If you are buying one from an FFL, you must be 21 years old under federal law.  Your state may impose stricter requirements.

Below is an excerpt from the attached letter  from ATF explaining the age requirement.

This is in response to your letter of November 16, 2006, to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) advising that you are 18 years of age, the owner of a AR-15 type receiver, and wish to register it has a short-barreled rifle using an ATF 1 application.You ask whether ATF would approve the application submitted under these circumstances.

In the April 27th issue of Bullet Points, the NSSF wrote the following update

NO IMPLEMENTATION YET SEEN FOR NOTICE 41P AS FINAL RULE . . . NSSF has confirmed with ATF that the bureau is unlikely to publish Notice 41P (NFA Trusts) as a Final Rule for quite some time. This is in part because EPS resources are being diverted to help process the 310,000 public comments received in response to the armor piercing ammunition framework proposal. In addition, it seems ATF has not prepared to revise the NFA database so that it can track “responsible persons” for NFA trusts. The proposed rule would require the responsible person(s) on an NFA Trust be fingerprinted.

This seems consistent with the statements made by the ATF at the Annual Firearms Seminar in Nashville earlier this month when we reported on many of the statements ATF made including poorly written trusts.  Remember, a properly written gun trust should give you and others involved with the trust guidance what you can and can’t do instead of leave it up to the individual to determine what to do.

Many individuals have purchased thread adapters to permit the use of an oil filter as a “solvent trap”.  The problem is that this adapter can also be used and is often intended to be used to create a suppressor.   The resellers on ebay who sold these adapters have all seemed to have disappeared and many of their customers are reporting being contacted by local ATF agents to collect the parts they purchased.

Recently we have had several clients contact us about purchasing these “solvent trap parts” and using them to make a Suppressor with a Form 1.  Apparently there is someone marketing these parts including baffles as a solvent trap to be used for gun cleaning.  It would not surprise me, if ATF shut down the ability of companies to sell parts as cleaning kits or solvent traps and then began targeting the customers of these parts in much the same way as the ATF continues to contact the customers of the companies who previously sold them eBay.

ATF has taken the position, in the past, that a part to a suppressor is a suppressor and under this theory, if you purchase these parts, the parts may in and of themselves be considered suppressors.  Paying the tax stamp on a Form 1 does give you the permission to manufacture a suppressor, but not necessary to purchase a suppressor manufactured by someone else.  We would caution clients who are considering manufacturing their own suppressors from parts that ATF considers a suppressor as the purchase of these parts may require an approved Form 4.

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.

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

Contact Information