ATF-41P Changes the Rules for Gun Trusts

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On January 4, 2016, a new regulation—commonly referred to as ATF-41P—proposed by the Bureau of Alcohol, Firearms, Tobacco & Explosives (The “ATF”) was signed as a final rule by Attorney General Loretta Lynch. The final rule, which goes into effect 180 days after it is published in the Federal Register (27 C.F.R. § 479), changes three key aspects of the regulations governing applications to make or transfer an NFA firearm, especially for Gun Trusts.

Background Checks for Trustees

Perhaps the biggest change made by ATF-41P requires “responsible persons” of a trust, partnership, association, company, or corporation to complete the same forms, and to submit photographs and fingerprints to the ATF whenever such a legal entity is applying to make or transfer an NFA firearm. (27 C.F.R. § 479.11). This means that for Gun Trusts, each and every trustee of the Gun Trust will have to submit to a background check anytime the Gun Trust is applying to add a new NFA firearm to the trust.

While this requirement eliminates one of the greatest advantages of using a Gun Trust to acquire NFA firearms, Gun Trusts still allow more than one person to serve as a “responsible person” for any one NFA firearm. In contrast, a person making or purchasing an NFA firearm in his or her individual name will be the only person authorized to possess or use that firearm. Thus, while ATF-41P makes it much more inconvenient for the trustees of a Gun Trust to acquire new NFA firearms to add to their trust, it is still possible for the Gun Trust to have multiple authorized users as long as each of those users has passed a background check.

CLEO Signatures No Longer Required

One benefit of ATF-41P for gun owners is that it eliminated the requirement for applicants to obtain a certified signature from their county’s Chief Law Enforcement Officer (CLEO) as part of an application to make or transfer an NFA firearm. Applicants for NFA firearms must still send a copy of their applications to the local CLEO as part of the application process, but the CLEO’s signature is not necessary in order for the application to move forward with the ATF. Several comments submitted during the rulemaking process of ATF-41P noted that the CLEO signature requirement was somewhat redundant with the requirement to submit to a criminal background check. Commenters also noted that many CLEOs in the past have refused to sign applications for NFA firearms, and thus requiring a CLEO signature often gave too much unfettered discretion to CLEOs who were generally opposed to anyone owning an NFA firearm. By eliminating the requirement for a certified CLEO signature, the ATF has addressed these criticisms and somewhat streamlined the already complicated process for acquiring NFA firearms.

Executors of Estates may Possess NFA Firearms

The ATF also “clarified” that an executor, administrator, or personal representative of an estate may possess any NFA firearms registered in the individual name of the deceased gun owner during the term of the probate process without having to treat the gun owner’s death as a “transfer.” (27 C.F.R. § 479.90a). Instead, when the executor is ready to transfer an NFA firearm to a certain beneficiary or heir, he can submit the application to the ATF, along with an ATF Form 5 (5320.5) Application for Tax Exempt Transfer and Registration of Firearm. This means that the estate of an NFA gun-owner will not have to pay the $200 transfer tax per NFA item that was registered in the gun owner’s individual name. For Gun Trust owners, this clarification has little impact, since many Gun Trusts (done correctly) may be designed to continue after the death of the person who originally created the Gun Trust.

Helpful Links

The final ruling of ATF-41P can be found here: https://www.atf.gov/file/100896/download

For a helpful guide to the benefits of a Gun Trust, see our FAQ blog post: http://www.wolfejones.com/what-is-a-gun-trust/

What is a Gun Trust?

Introduction to NFA Gun Trusts:

NFA Gun Trusts are a fairly recent invention in American law. Over the past few years, gun-owners across the country have created and used Gun Trusts to acquire and use firearms that are tightly regulated by the National Firearms Act (“NFA”) and the Gun Control Act (“GCA”). Under these laws, the Bureau of Alcohol, Tobacco, Firearms and Explosives (commonly known as the ATF or BATFE) requires that certain types of weapons and accessories be registered in the National Firearms Registration and Transfer Record. These weapons are commonly called NFA firearms/weapons, Title II firearms/weapons, or Class 3 firearms/weapons.

Traditionally anyone wishing to own a firearm regulated under the NFA had to register it in his or her individual name. However, the wording of the NFA currently allows for legal entities such as corporations and trusts to register NFA firearms in the name of that legal entity. There are several benefits that come from the use of a Gun Trust:

Benefits of using an NFA Gun Trust:

(1)     NFA firearms owned by a Gun Trust can be accessed and used by the Trustee(s) of that Gun Trust. Because the trustees of normal trusts have the right to manage the trust property, trustees of Gun Trusts have the right to handle and manage the property of the Gun Trust (i.e. any NFA firearms). Because the NFA firearms are registered in the name of the trust, the creator of the Gun Trust can name multiple people as trustees and thus grant them legal authority to use those NFA firearms. However, each trustee of the Gun Trust must submit to a background check with the ATF before they will be authorized to use any NFA firearms owned by the Gun Trust.

 (2)     Trusts, unlike other legal entities such as corporations or LLCs, do not require registration fees or similar expenses in order to remain valid. Trusts are also more private and confidential.

 (3)     After your death, a properly drafted Gun Trust can provide helpful instructions to the person administering your Estate in how to properly distribute your NFA firearms without breaking the law and risking criminal prosecution. Although not necessary, a Gun Trust can also be used to distribute your regular firearms to your designated heirs.

Frequently Asked Questions:

 Q.   What is an NFA firearm or Title II weapon?

A.     Under 26 U.S.C. § 5845 (2012), the following categories of weapons are highly regulated by federal law and require registration with the ATF:

(1)        Machine Guns – this term includes any firearm which can fire more than 1 cartridge per trigger pull, as well as the receiver for any such weapon, or any weapon that is “readily convertible” to a machine gun.

(2)        Short-Barreled Rifles – this term includes any firearm with an overall length under 26 inches or a barrel or barrels under 16 inches.

(3)        Short-Barreled Shotguns – this term includes any shotgun which has a smoothbore barrel and either an overall length of less than 26 inches or a barrel of less than 18 inches in length.

(4)        Suppressors (a.k.a. Silencers) – this term includes any portable device designed to muffle or disguise the report of a portable firearm.

(5)        Destructive Devices – this term includes (A) devices such as grenades, bombs, explosive missiles, poison gas weapons, and (B) any firearm with a bore over 0.50 inch, except for shotguns or shotgun shells which are generally recognized as particularly suitable for sporting purposes.

(6)        “Any other weapon” – this term may include any weapons or devices capable of being concealed on the person from which a shot can be discharged through the energy of any explosive. Examples of such weapons include, but are not limited to, concealable weapons disguised as pens, cigarette lighters, knives, cane guns, and umbrella guns. Such weapons may also include smoothbore handguns designed to fire a fixed shotgun shell.

Q.   What is a Class 3 weapon?

A.    Technically, there is no such thing as a “Class 3” weapon. This term is often incorrectly applied when referring to NFA firearms or Title II firearms (as in Title II of the Gun Control Act). This misnomer likely comes from the fact that gun dealers who wish to sell NFA firearms must obtain Class 3 Special Occupational Tax (SOT) status.

Q.   Can I transfer the NFA firearms I already own to my Gun Trust?

A.     Yes, but you will need to complete and submit the ATF’s Form 4 and pay the transfer tax of $200 for each firearm, just as you would in transferring the firearm to another person.

Q.   Can I name anybody as a Trustee of my Gun Trust?

A.     Not just anybody. Before naming anyone as a Trustee, you should reasonably satisfy yourself that that person is not a “prohibited person” as defined under 18 U.S.C. § 922(g) (2012). Prohibited persons commonly include persons convicted of any felony or a domestic violence misdemeanor, drug addicts, mentally ill persons, illegal immigrants, and persons subject to a protective order (aka restraining order). Additionally, your Trustees should generally be 21 years of age or older since many states may vary in the minimum age requirements of persons allowed to possess a firearm. Anyone you appoint as Trustee must also pass a background check with the ATF, which requires submitting fingerprints and photographs for each applicant.

Q.    Does Alabama law ban any NFA firearms?

A.     No. It is legal to own NFA firearms in Alabama as long as you comply with federal law.

Q.     Does a Gun Trust require its own Tax ID number (EIN)?

A.     No. As long as the Settlor (i.e. the person who created the trust) is also a Trustee, then that person’s Social Security Number is used instead of an EIN. Banks usually request an EIN when setting up a trust account.

Contact Us:

If you are interested in learning more about Gun Trusts or having one created, contact Zach Guyse at 256-534-2205 or by email at zguyse@wolfejones.com.

DISCLAIMER

            The laws and regulations governing NFA firearms are subject to frequent change. As such, the information contained in this document may become outdated from time to time, and should not be relied upon without first consulting with an attorney familiar with the laws referenced herein.

            No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.