atf-logo.jpgATF hires 9 new examiners. Last week, the NFATCA posted an article that the DOJ lifted the hiring ban for the BATFE (Bureau of Alcohol, Tobacco, Firearms and Explosives) and the ATF hired 9 new examiners.

This should significantly speed up the approval process for the purchase or manufacture of firearms restricted by the National Firearms Act. The new staff at the ATF who examine the requests for transfer ( ATF Form 4) and the requests to manufacture (ATF Form 1) should be around 30 which is almost triple the number just a few months ago when expected approval times were in excess of 6 months. We do not know if this will bring times down to 2-3 months but it seems reasonable.

We have been telling 07 Manufactures for almost a year that they need to comply with ITAR even if they do not export anything. Now the according to Joshua Prince with the Prince Law Firm, In the November 2012 newsletter ATF has declared that all 07’s must register with the DDTC unless the DDTC specifically exempts them. The penalties are huge and include 20 years in prison and 1 million in fines among other civil penalties per violation.

So what ever your reason for not registering even if ATF previously told you not to, you need to register and register soon. If you need help with this please Contact Us and we will be happy to get you in touch with someone who can help you do this correctly.

Recently we have begun to see many “Gun Trusts” that are nothing more than a traditional revocable trust with a few provisions that mention firearms or NFA firearms. As the creator of the NFA Gun Trust, we feel that we are entitled to define what is and what is not a Gun Trust. Here are a few of the more common issues we see with regular or other so-called “Gun Trusts”:

  • A gun trust should be a document which deals with regular as well as NFA firearms.
  • It should not contain language that instructs people to violate the law if they follow the instructions contained in the trust and should not allow for someone who is a prohibited person to become or remain an authorized user of the firearms.
  • It should deal with incapacity and death in a manner designed for firearms.
  • A real Gun Trust or NFA Gun Trust should be designed to protect individuals, their families and their friends from issues of constructive possession and guide them on the legal ways to purchase, use, transfer, and distribute all firearms.
  • In addition, a Gun Trust should not require the sale of firearms to pay income should you become incapacitated – unless necessary.

Perhaps the best way to see if you have a real “Gun Trust” or not is to look for the “Gun Trust Lawyer®” registered trademark or that it was copyrighted by David Goldman. If you have a gun trust that does not contain these markings, and you would like it reviewed free of charge for compliance with federal issues, Contact Us and we would be happy to review the document with you.

A Gun Trust should be designed to hold all firearms including those restricted by the NFA. All of our Gun Trusts are designed for all of your firearms. As an owner of all types of guns, I designed this trust to deal with issues from a revolver, to a Glock pistol, and even NFA firearms like silencers and machine guns.

What most people do not realize is that many of the same issues regarding transfer upon death or incapacity exist for regular firearms as well as those sold by Class 3 SOT dealers. It is for this reason that I would suggest putting all of your Guns in one of our NFA Gun Trusts.

The real issue is that while we can pick beneficiaries while we are alive, we do not know who will survive us or anything about them on the date of our death.

We do not know where they will live; in some states regular firearms are highly restricted or prohibited by law. Will some or all of our guns will be permitted in the state where each beneficiary will live at the time of our death?

The legal status of our beneficiaries. Have our kids or friends done something silly that we do not know about that might have caused the beneficiaries to lose their rights to own, possess, or use a gun. Are they involved with drugs in a state where it is legal? While legal in some states, it is still a federal crime and would make a person using illegal drugs (at the federal or state level) a prohibited person. Another issue might involve being charged with an act of domestic violence or child abuse even if not ultimately convicted of the charge. The Lautenberg amendment is a federal statute that says that certain actions by you or your attorney on your behalf that are associated with charges which are classified as domestic violence or child abuse can cause a permanent loss of your firearms rights.

Most importantly, as much as we would like to believe that our beneficiaries will be the right age and have the right mental state when we die, we will not be there to make the decision. Our Gun Trust takes all of this into consideration and allows the successor Trustee to look at the age, make sure they are old enough and of the right frame of mind. Other trusts only require that someone is not determined to be legally incompetent. With firearms this is not enough, someone can be legally sane, but not the person you would want to hand a gun. People change over time, and it is not always for the better.

Our Gun Trust allows all of these issues to be considered and then a decision can be made or the decision can be to wait an addition period of time and reevaluate the beneficiary.

Thumbnail image for silencer_map.gifIt appears that a former deputy in NY had some firearms that had been previously seized by the police in his personal possession even though they were suppose to be destroyed. One of the items in his possession was a silencer. While it appears that active duty police are permitted to have silencers, once they are no longer a police officer they cannot possess them. The specific details on how he received the silencer are not know, but even if he legally possessed it, once he was no longer a police officer his possession in NY would be in violation of the law.

We are often contacted by NY police officers wanting to set up gun trusts to buy silencers in NY and generally advise against it because of the risks of separation from the police and the consequences. Some police officers form trusts and buy and keep NFA firearms in other states where they are legal but it is risky to bring them to NY.

Aliens who are legally in the United States can purchase NFA firearms as long as they are not a prohibited person. When doing so they often have confusion over how to fill out a 5330.20 when it asks if they are a non-immigrant Alien in question 5. The following definition may help answer the question in your particular circumstances.

Under 8 USCS § 1101 a non-immigrant alien is defined as “an alien having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country.” Rowland v. Marshall, 650 F.2d 28, 29 (4th Cir. Va. 1981)

Today we received another copy of a Gun Store Generic NFA Trust that was provided to a customer of the shop. Not only was it a generic trust and did nothing to advise or protect the client from issues regarding the transfer, ownership, possession or use of TItle II firearms (sold by Class 3 dealers) but the trust itself was invalid as it did not comply with the requirements to create a valid trust in the State. While it may have been a valid trust in another state, each state has its own requirements for creating a valid trust. These requirements change and a trust that may have been valid a few years ago may not be valid under the current laws of the state. It is important to make sure your trust complies with the state’s requirements for creation of a valid trust. What is disturbing is that ATF approved transfers to this invalid trust.

Remember just because ATF approves a transfer, the agency is not stating that your trust is valid nor that you are legally able to be in possession of the firearms. If you have a free trust or a gun shop trust it is important to have it reviewed for legality as well as compliance with the ATF to make sure your document is valid and that your document does not instruct you or others to break the law in regards to regular firearms or those restricted by the NFA.

One of the benefits of a gun trust is that it can be created by a Gun Trust Lawyer® to last throughout your life or in some cases can be designed to last for generations. Trusts are subject to the Rule Against perpetuity (RAP) which may limit how long the trust can last.

The common law RAP was designed to keep people from controlling from their grave. Today the modern trend it to extend or eliminate this restriction and many states like Alaska, Idaho, New Jersey, Pennsylvania, Kentucky, and South Dakota have abolished the RAP by statutes.

In addition, 26 States (Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Indiana, Kansas, Massachusetts, Minnesota, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Oregon, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia), the District of Columbia, and the U.S. Virgin Islands, and is currently under consideration in New York) have enacted the Uniform Statutory Rule Against perpetuity which extends the time your trust can control from 21 years after the death of a life in being at the time it was created to 90 years of creation if it actually vests.

In addition other states have made additional changes to extend the vesting period for Trusts. Two such examples are Florida at 360 years and Arizona at 500 years.

So even if you live in a state that has a short RAP there may be a benefit in extending the life of the trust by changing the jurisdiction of your trust to another state.

This is a common technique used with our Multi Generational Asset Protection Gun Trust to allow children, grandchildren, great-grandchildren and beyond to use and have access to the firearms without risking their loss to creditors.

While the Bill would legalize hunting with silencers, the bill also includes stiffer penalties for poaching while using a silencer. Most legislation regarding silencers has been based on anti-poaching concepts. The NRA and the American Silencer Association have done a good job at helping to pass similar bills in other states over the past few years. Anyone who has used a silencer knows that a suppressor is a better name and that unlike they are shown in the movies, a suppressor does not make a firearm silent.

The modern trend is to make silencers legal to use while hunting.

Starting January 1, 2013 you will be able to purchase, transfer, make, possess, and use a SBR in IL. At first glance it appears to be very limited and only apply those with a valid and active military re-enacting group membership to use them for military re-enacting. But there is an interesting exception, those with a Valid C & R license can also own them.

The Law is poorly written and leaves many questions unanswered. A Gun Trust cannot have a C&R license, but a Trustee of a Gun Trust Can have a C&R license. The question is will ATF allow a Trust to purchase a SBR if all Illinois based Trustee’s (the authorized users) have a C & R License as required under IL law. If not you will still need a CLEO sign off because you can’t have a C&R within a Trust.  ATF has stated that a Trust cannot own an SBR in IL (2014). 

Also, once you modify a C&R firearm it no longer retains its C&R status, but the Illinois law is different than similar laws in CA because if you have a C&R license, you can buy any SBR not just a C&R SBR.

In Summary, SBR’s are legal in IL if you have a C&R regardless of whether the SBR is an SBR. It appears based on Documents received by the ATF that a Trust or Gun Trust may not own an SBR in IL.

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