It looks like an attempt to remove the CLEO certification by the NFATCA which began in 2009 has backfired and now the ATF is wanting a modified CLEO signature, NICS check, fingerprint cards, photograph, certificate of citizenship for every responsible party of a fictitious entity. You can obtain a copy of the proposed rule here

While ATF already has a definition of responsible party for dealers, they are proposing the following for fictitious entities:

Depending on the context, the term “responsible party” includes any individual, including any grantor, trustee, beneficiary, partner, member, officer, director, board member, owner, shareholder, or manager, who possesses, directly or indirectly, the power or authority under any trust instrument, contract, agreement, article, certificate, bylaw, or instrument, or under state law, to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on behalf of the entity.

As far as the modified CLEO, the ATF seeks public comments regarding whcther it is feasible to ask CLEOs to certify that they are satisfied that the photographs and fingerprints match those of the responsible person.

For example, some responsible persons may bring their fingerprint cards to the CLEO once already stamped, and some legal entities may have the paperwork, fingerprint cards, and photographs for each of their responsible persons couriered to the CLEO office. In such instances, ATF seeks comments on whether CLEOs will have enough information to certify that they are satisfied that the photographs and fingerprints match those of the responsible persons, or if changes are needed to this proposal.

If you plan on submitting comments the ATF, the Prince Law Firm has a good guide and recommendations that they have posted. It might be a good idea to see if your CLEO would sign such a document, perhaps enough comments indicating that their CLEO would not sign such a document may make a difference.

Remember the ATF has not yet changed the rules and is only at the beginning stages of changing the rules and forms.

If you are considering purchasing a Title II firearm, you might want to do so before any changes are implemented. Several times in the past there have been proposed changes that were not implemented but it does seem likely that there will be some changes in the future.

If and when changes are made and implemented, we will be able to address them in our documents appropriately. Our ArmsGuard Protector allows us to make these types of changes even if your trust is irrevocable. If your trust does not have an ArmsGuard Protection you may want to contact us about adding one.

Below is what was posted on the whitehouse.gov website. It is clear that the whoever wrote this does not understand the law and you will notice a lot of anti firearms language and an anti gun rights slant to the message.

Closing a Loophole to Keep Some of the Most Dangerous Guns Out of the Wrong Hands

  • Current law places special restrictions on many of the most dangerous weapons, such as machine guns and short-barreled shotguns. These weapons must be registered, and in order to lawfully possess them, a prospective buyer must undergo a fingerprint-based background check.
  • However, felons, domestic abusers, and others prohibited from having guns can easily evade the required background check and gain access to machine guns or other particularly dangerous weapons by registering the weapon to a trust or corporation. At present, when the weapon is registered to a trust or corporation, no background check is run. ATF reports that last year alone, it received more than 39,000 requests for transfers of these restricted firearms to trusts or corporations.
  • Today, ATF is issuing a new proposed regulation to close this loophole. The proposed rule requires individuals associated with trusts or corporations that acquire these types of weapons to undergo background checks, just as these individuals would if the weapons were registered to them individually. By closing this loophole, the regulation will ensure that machine guns and other particularly dangerous weapons do not end up in the wrong hands.

First I will address what was posted.

  1. The NFA imposes a restriction on the transfer and possession of certain firearms. Not all prospective buyers must undergo a fingerprint-based background check.
  2. Most people using Gun Trusts are purchasing suppressors, these are not dangerous weapons, in fact a suppressor is not a weapon unless you hit someone with it. Most suppressors are round and do not have a sharp edge. A butter knife is more of a weapon than a suppressor
  3. Next, prohibited persons and felons cannot easily evade the requirement of a background check to gain access to machine guns anymore than they can with a regular firearm. Most dealers will do a NICS check on anyone purchasing a Machine Gun. As far as transfers from non firearms dealers, there are stricter requirements on transfers to individuals and the same requirements as regular firearms to trusts or corporations. No criminal would subject themselves to notifying the ATF of their intent to purchase a machine gun, wait 6-12 month to be able to receive the firearm, pay a $200 tax, and pay an extra $10,000 – $20,000 to purchase a legal machine gun when illegal machine guns can be purchased or made easily without waiting or notifying the ATF. This logic is flawed.
  4. There is a process where the ATF can change the rules and requirements in the procedure for purchasing these items. This is not a done deal and as of now what might be proposed is unknown but it will likely include something similar to a NICS check or fingerprint cards.

So what does this mean for your current Gun Trust or one you are ready to create?

This does not mean Gun Trusts are dead or useless. NO. In fact, today many people who only own regular firearms use Gun Trust to manage their firearms. It is the responsible way to own firearms to prevent your family and friends from being subjected to an accidental felony.

Current estate planning and state laws are flawed when it comes to the disposition of firearms to those who survive you. They treat a firearm the same as a bank account. Firearms owners are generally very responsible people and would not want to put their family or friends at risk because of their death.

Our Gun Trusts deal with these issues and allow those who survive you to make smart and intelligent decisions based on the geographical, legal, and emotional issues that will be unknown until you die.

In addition, our Gun Trusts can be setup to last from generation to generation while providing asset protect for your firearms. Yes it is possible to protect your firearms from creditors, divorce, divorce of a child or grandchild, and even from the creditors of your descendants.

Any new requirements will likely slow down the process of obtaining approval from the ATF and may make the new electronic filing that the ATF introduced obsolete. If you are thinking of getting a gun trust to purchase a Title II firearm, now may be the time to do so before new regulations are enacted which change the way they work.

As we have not seen any of the proposal and once it is published there will be a 90 day comment period prior to the introduction of any changes, it is hard to speculate on how or what may be changed.

We do not think this will significantly make a difference to our typical gun trust client as we do not provide gun trusts to felons, domestic abuser, or other prohibited persons. In fact, our trust would not be valid if used by a prohibited person.

Our Gun Trusts are created so that if the law changes we can address the changes in law by changing the trust. It is likely that most if not all changes can or will be addressed as they are made known.

Today there has been much news about an action or executive order to help ensure that people who should not be able to own NFA firearms are not permitted to do so using a Trust.

First, our Gun Trusts, have never allowed a prohibited person to legally purchase, or be authorized to use firearms or ammunition. This is one of the significant differences between a real Gun Trust from a Gun Trust Lawyer® like we provide, and other so called gun trusts or regular estate planning Trusts.

If you are a criminal, addicted to drugs, a user of illegal drugs(under federal law including medical marijuana), or prohibited to own firearms under local, state, or federal laws, you cannot use our documents to create a valid trust. In addition, any co-trustee or authorized users who are prohibited cannot be added and any attempt to do so is void.

In regards to what is being reported in the news today, at this time we have not seen anything in writing to indicate what was done, what will change, or how it or when any changes will be implemented. At this time, some reports indicate they are proposed changes that will go through a 90 day review at ATF, prior to ATF making any decision to implement any changes. Once we have seen the documents we will be in a position to comment.

The Prince Law Firm has a good article on the ATF Rulemaking Process and potential implications for Gun Trusts.

If you want to keep up to date on any changes or updates to this issue, you should watch this blog or subscribe to it by using the subscribe function in the upper right under the state map or clicking on the subscribe image below.
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Last Updated 8/29

Ohio NFA Class 3 firearms
In Ohio a NFA Trust or Gun Trusts can own all types of firearms including those regulated by 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 Title II firearms – (Those sold by FFLs with a Class 3 SOT) in addition to the compliance that is required with the National Firearms Act.

In Ohio 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)

Follow this link to find out more about Ohio and NFA restrictions on Title II Firearms

If you would like more information on What a Gun Trust is and why you might need one as well as how to identity bad gun trusts you can contact us.

Updated Aug 29, 2013

Yesterday, I decided to try out the ATFonline.gov Eforms submission. I found the process very easy to do and while a little confusing the first time, it seems rather intuitive. Below are the steps I followed:

  1. Register for an account at ATFonline.gov. The system is very picky and must be used with IE 8 or a recent version of Safari on OS X. Sorry no Firefox, Chrome, or even IE 7.
  2. Log in.
  3. Select the Form 1. Better to use the bar and move it with the mouse, it is very difficult to scroll through the forms. ATF needs to switch this to a drop down menu.
  4. Application – this is where you state whether you are tax exempt or will be paying a tax.
  5. Applicant – Select that you are not a FFL and then complete your information. You should list the Trust name as the Licensee / Permitee Name.applicant.jpg
  6. Add line items. You can use one application for multiple items. I choose to only do one SBR. It walked me through the process of selecting the manufacture from a list.line-item.jpg
  7. Upload electronic documents. This is where I uploaded my scanned Gun Trust Documents.upload.jpg
  8. Certify that Under Penalties of Perjury, I Declare that I have examined this application, including accompanying documents, and to the best of my knowledge and belief it is true, accurate and complete and the making and possession of the firearm described above would not constitute a violation of Chapter 44, Title 18, U.S.C., Chapter 53, Title 26, U.S.C., or any provisions of State or local law.
  9. Enter credit card payment information
  10. Sign and Submit. By clicking a check box, your application will be submitted.

Within a few minutes I received a confirmation email showing that I had submitted my application and it was Pending Research because the manufacture I had selected was not listed in their database. This morning I received a new update saying that my status was changed to Submitted/In Process. I will keep updating this blog as I receive more information but it already feels faster than the paper system.

It was interesting to see that there was no certification of citizenship that was required my many ATF agents in the past. We had always taken the position that a Trust is not a person and as such cannot have a citizenship. If you are submitting the paper forms, we still recommend submitting the Certification, in case you agent wants it. For instructions see https://www.guntrustlawyer.com/certification.html.

ATF Online submission of Form 1 Status Updates.

  • Thursday August 8, 2013 Electronic Form 1 Submitted to ATF online
  • Friday August 9, 2013 Status changed to Submitted/In Process
    (with paper it will take 1-2 months and as much as 6 months to cash your check and change the status to In Process

introduction-to-gun-trusts.pngNFA GUN TRUST CLE
I have been asked to teach a CLE on Gun Trusts on September 11, 2013 for LawReview CLE.

Traditional estate planning can be problematic when dealing with firearms. This course will explain how a Gun Trust is designed to acquire, manage, use, and transfer firearms, including those restricted by the National Firearms Act of 1934.

The course outlines the different types of firearms, federal and state laws, as well as an analysis of how to use a Gun Trust.

The agenda will cover

Introduction
Types of Firearms
State Law Federal Law
Types of Ownership
The Gun Trust
Ethical and Malpractice Issues Conclusion

If you are an attorney and interested in becoming a Gun Trust Lawyer, you can also request information by filling the contact us form and checking the box to indicate you are an attorney.

David Goldman will be facilitating a discussion at Elder Concert 2013. Elder Concert is a statewide conference for the elder care professionals that is presented by the Academy of Florida Elder Law Attorneys, the Elder Law Section of the Florida Bar, Florida Department of Elder Affairs, the Florida State Guardianship Association, the Florida Geriatric Care Managers Association, Florida Atlantic University and the University of South Florida.

‘Bequesting a Felony – Geriatrics and Guns’ will take place on Saturday, September 21, 2013 from 10:45am to 12:00pm in Boca Raton and on Friday, October 11, 2013 from 1:30pm to 2:45pm in Tampa.

Obama reported to sign UN Gun Treaty while Congress is on Vacation:

Obama.jpg
Jay Carney said Obama will sign the UN Arms Trade Treaty “before the end of August…We believe it’s in the interest of the United States.”

I have previously written on how the UN Arms Treaty can prohibit the future transfer of firearms for citizens of the United States. For the Treaty to become effective it must be ratified by the U.S. Senate. This requires 67 votes. You should contact your Senator and let them know you do not want them to approve the UN Arms Trade Treaty also known as the UN Gun Treaty.

To read more about the UN Gun Treat follow this link and for more commentary on the treaty follow this link

While the UN Gun Treaty could prohibit future transfers of firearms, a Multi Generational Gun Trust could protect your firearms for future generations by not subjecting the firearms to restrictions on the transfer of firearms to future generations. If you or your family has a firearms collection you would like to protect, contact us to find out more about our Advanced and Professional Gun Trusts.

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

Machine Guns  (special permission is required)
Any Other Weapon (AOW) (except Pen Guns or Assault Weapons) *1
Destructive Devices (DD)
Short Barreled Shotguns (SBS)  (C&R only)
Short Barreled Rifles (SBR)  (C&R only)

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&R  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

North Carolina will become the next state to legalize hunting with a suppressor. As of 10/1/2013, a suppressor will be legal to use on firearms while hunting. The NC Wildlife Resource Commission made the changes which are not found in the NC statutes and also not found in the in the NC Hunting Regulations which were printed before the legislation passed. here is a link to the legislation as well as the press release. If you plan on hunting in NC after October 1, 2013, I would suggest keeping a copy of the legislation and press release with you as many police officers may not know that it will be legal to hunt with a suppressor after 10/1/2013.

Every time a state legalizes hunting with a suppressor, the sales of suppressors in that state dramatically increase which creates a longer approval wait time. Given that current approval times in most states is more than 6 months. it would be advisable to purchase your silencer now if you have any plans on hunting with a silencer in 2014. Remember that if you use a Gun Trust, you do not have to obtain your local sheriffs permission to purchase a silencer as well as creating the flexibility to have multiple authorized users. There are many things that are different with Title II firearms (lile suppressors) and it would be a good idea to request our free report on What is a Gun Trust and Why you might need one.

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