Articles Posted in ATF / BATFE

ATF continues to let the date slide on a decision of when and how to implement 41P.

DOJ/ATF RIN: 1140-AA43 Publication ID: Spring 2015

Title:

Machine Guns, Destructive Devices and Certain Other Firearms; Background Checks for Responsible Persons of a Corporation, Trust, or Other Legal Entity With Respect to Making or Transferring a Firearm

Abstract:

The Department of Justice is planning to finalize a proposed rule to amend the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) regarding the making or transferring of a firearm under the National Firearms Act. As proposed, the rule would; (1) add a definition for the term “responsible person”; (2) require each responsible person of a corporation, trust or legal entity to complete a specified form, and to submit photographs and fingerprints; and (3) modify the requirements regarding the certificate of the chief law enforcement officer (CLEO).

 

To see a history on 41P as well as major comments see our 41p update page.

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.

You state that your understanding of the Gun Control Act prohibits the transfer of Short Barreled Rifles, but that you cannot find any language in the GCA nor the NFA dealing with the already possessed rifle receiver. You are correct. The GCA does establish age requirements for the sale of firearms by licensees and the NFA is silent on age restrictions.

Accordingly, since the GCA does allow possession of rifles by persons under the age of 21, you would not be prohibited from applying on a Form 1 to make a short-barreled rifle.

While an application by an individual would need photographs and a certification from your chief of police or sheriff, an application using a Gun Trust would not.

Form1-18yr-old

 

 

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.

For a complete listing of our posts on 41P see our 41P webpage at http://www.guntrustlawyer.com/41p.html

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.

For those who state that no one has ever been convicted of charges related to a homemade suppressor, you might see this article. Lots of people are charged and convicted of illegal suppressors.  Sometimes people get the concept of people rarely being convicted of the  use of a  legally owned suppressor with the common occurrence of people being charged and or convicted of possession or use of an illegal suppressor.

I know many will say it is perfectly legal to purchase these items. ATF  has previously indicated that it is legal a company to sell “solvent traps”  and parts to “solvent traps” and It is legal to use them as “solvent traps”.  The problem is that most people who purchase them intend to use them as suppressors or parts to a suppressor and not as a solvent trap.  Even those who do not intend to use them as suppressors, sometimes do.  Looking at what has happened with other products in the last year we can see that ATF seems to be moving from intent to use, to classify a firearm.  Whether this is reasonable or proper for them to do, it is probably not a fight you as an individual can afford.  It is our opinion, that the cost of defending your position, regardless of the outcome, is not something that makes sense for the average individual.   The ATF is not stupid, the fact that you are even reading this article would indicate to most that your intention or interest in purchasing these items is not to use them as a solvent trap.

If you purchased a suppressor (solvent trap adapter) off ebay or somewhere else, you may want to contact a criminal law attorney in your area to talk with you about how to properly deal with the parts without creating liability or reducing the risk of liability.  Just because you haven’t been contacted yet, does not mean they will not contact you.  Even this week, we have had reports of people being contacted by the ATF in regards to the purchase of these items.

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.

In my opinion, 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 a trustee to easily violation the NFA  throughout the document by not clearly prohibiting these violations.
  • The trust permits any trustee to sell your guns without your consent.
  • The Trust permits trustees to take away your gun rights, (from within the trust) if in their opinion you can’t handle your own affairs. Of course, your legal gun rights under the 2nd Amendment will not be removed, but your ability to use and have access to the guns in your trust can.
  • 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, if requested from your bank. The instructions should state why an EIN number is not required and direct you on a proper response to provide the bank or how to deal with this common misunderstanding to tax law that many banks can initially make

(Updated 4/19/15 for a clarification).

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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