Common mistakes when completing a Form 20

Whenever you need to temporarily or permanently transport a Short-Barreled Rifle (SBR), Short-Barreled Shotgun (SBS), Machinegun, or Destructive Device (DD) across state lines, you will need an approved ATF Form 5320.20 (more commonly known as just Form 20) before doing so.

Because we often do not have the time to resubmit a Form 20 before a shooting competition or move, it is important that you do not fall victim to some of the more common errors that can occur with this form (especially when the items are owned by a trust).

Mistake 1)  Putting the wrong name for the registered owner

In box 1 of the Form 20 it asks for the name and address of the registered owner.  If your NFA items are owned by a trust then this should contain the name of the trust and not your name. If this is wrong the Form 20 will be denied.

Solution:  We are going to learn a single rule that will solve almost every problem with the Form 20.  “It should match the corresponding field on the approved Form 1 or Form 4 for the item in question.

Mistake 2)  Mistyping the Manufacturer, Model, Caliber, Serial #, OAL, Etc.

The ATF matches these Form 20’s to the National Firearms Registration and Transfer Record (NFRTR).  Therefore, if you do not provide them the information as it was entered your Form 20 will be denied.

Solution:  The information for each item should match the corresponding field on the approved Form 1 or Form 4 exactly (and this is true even if you have subsequently come to believe that the approved Form 1 or Form 4 is incorrect, at least until such time as the information is corrected in the NFRTR).

Mistake 3)  Leaving a required field blank

Other than the fields listed above, there are fairly few required fields.  Make sure to answer the remaining fields as follows:

  • For temporary transportation, Box 3 From and To Dates must be filled in and should not exceed 365 days in length.
  • For permanent transportation, Box 3 From and To Dates must be filled in and should contain projected start and end dates for transporting the items.
  • For temporary transportation, Box 5 should contain: “Target practice, sporting events, and all lawful purposes” .
  • For permanent transportation, Box 5 should contain: “Permanent change of address”.
  • Boxes 6 and 7 must be filled in for both temporary and permanent transport.
  • Box 8 should contain something similar to one of the following (depending on circumstances): “Personal conveyance”, “Common Carrier”, or “Air Carrier”
Posted in Administrative Law, ATF, BATFE, Destructive Devices, Federal Law, Form 20, Interstate Move, Interstate Travel, Machine Guns, NFA Trusts, SBR, SBS, Short Barreled Rifles, Short Barreled Shotguns | Comments Off on Common mistakes when completing a Form 20

Can your aircraft be owned by your living trust?

Just as is the case with automobiles, the answer to this question is “Yes it can!

However, unlike an automobile registration where the trust itself is the registered owner, the FAA requires that one or more trustees register the aircraft in their own name with ‘as Trustee‘ appended.

The FAA requires the following when registering an aircraft as trustee of a trust:

  • An affidavit showing that each beneficiary under the trust is either a U.S. Citizen or a resident alien. This includes each person whose security interest in the aircraft is incorporated in the trust. If any beneficiary under the trust is not a U.S. Citizen or a resident alien, the trustee or trustees must provide an affidavit stating the trustee is not aware of any reason, situation, or relationship that would give the non-citizen a share of control greater than 25 percent to influence or limit the exercise of the trustee’s authority.  If I drafted your trust then I will prepare your affidavit for you free of charge.
  • A certified true copy of the complete trust instrument (in Virginia this is known as ‘copy certification’ and may be done by any Notary)
  • A bill of sale signed in ink or containing an acceptable digital signature from the present registered owner to the trustee(s) of the trust in their capacity.  If I drafted your trust then I will also prepare this bill-of-sale for you free of charge.
  • A completed Aircraft Registration Application (AC 8050-1) showing the trustee as applicant and containing an acceptable digital or ink signature of the trustee(s)
  • The $5 registration fee.  Make checks payable to Federal Aviation Administration.

IMPORTANT NOTE:  When transferring ownership into a trust, do not forget to contact your insurance provider.

Posted in Aircraft Trust, FAA | Comments Off on Can your aircraft be owned by your living trust?

Can your automobile be owned by your living trust in Virginia?

This is a questions that I am often asked and the answer is “Yes it can!”  But that is only the beginning of the discussion.

The follow-up questions that you should be asking (and the respective answers) are:

1)  Should I put my car in just any trust?

No.  In order to maximize the benefits of placing your automobile into a trust you will want one that is properly drafted for the purpose.

2)  How do I transfer an individually-owned automobile into my trust?

You must complete the Assignment of Title by Owner section on the existing title.  You will place the trust name in the buyer field and the phrase ‘Placing in Trust‘ in the Sale Price field (see example below).

You will then need to complete the Application for Certificate of Title and Registration (VSA 17A) in the name of the trust in your capacity as Trustee.

Make sure that you select ‘Owned by an Individual’ on the second row (assuming the vehicle is not actually used for business purposes).

You will then  take the your trust instrument, title with completed assignment section, and application to your nearest DMV office to complete the process.

3)  Do I have to pay use-tax when I transfer an individually owned automobile into my trust?

Not if you have a properly drafted trust.

To transfer the automobile without being subject to use tax you will need to complete a Purchaser’s Statement of Tax Exemption (SUT 3).

In the Statement of Exemption section you will write the following:

Transferred to a trust for which I am a beneficiary

Then, in the paragraph number section below the Statement of Exemption reference paragraph 23.

Important Note:  If I didn’t draft your trust then you should consult with the attorney who drafted it to insure that your trust allows you to avail yourself of this Exemption.

4) If my trust owns my automobile, will it qualify for Personal Property Tax Relief (PPTR)?

Yes. Per the Virginia DMV’s guidance, “[A] qualifying vehicle ([as determined by] Va. Code 58.1-3523) is determined by the Commissioner of the Revenue (COR) of the county, city or town where the vehicle is garaged. In order to qualify for the tax relief, the motor vehicle must be owned or leased by a natural person or held in private trust and be used for nonbusiness purposes.

That is why your answer to the checkbox on the VSA 17A above is so important

5)  Is there anything else I need to do when I transfer my automobile into a trust?

Yes.  Do not forget to contact your insurance provider.  By federal law the insurance itself will not change but your policy needs to reflect the new ‘owner’ of the automobile.


Please contact me if you would like to discuss the estate planning and privacy benefits of having a living trust hold your automobiles.

Posted in Automobile Trust, DMV, Estate Planning, Privacy, Virginia Law | Comments Off on Can your automobile be owned by your living trust in Virginia?

Who is my CLEO?

Prior to the implementation of 41F, trust applicants were not subject to the Chief Law Enforcement Officer (CLEO) sign-off that was required of individual applicants.

As part of 41F, this requirement was changed from an affirmative ‘sign-off’ to a mere ‘notification’.  However, the notification requirement was then extended to apply to all ‘responsible persons‘ of an NFA trust.

Therefore, my trust clients often ask the question:

“Who exactly is my CLEO?” 

In Virginia, this question is further complicated by the fact that we have independent cities which are separate and distinct political subdivisions from the counties which surround them (which is not the case in many other states).

So … to answer this question, one must first determine whether they are a resident of an independent city or merely a county.  To do this, you may use the Locality Code Lookup tool made available by the Virginia Department of Taxation.

The good news is that once you have identified your jurisdiction, you have a number of choices which all meet the ATF definition of ‘CLEO’:

“the local chief of police, sheriff …, head of the State police, or State or local district attorney or prosecutor are acceptable”

While any of these are acceptable, I would recommend that you notify either the police chief or the sheriff in your jurisdiction.  Since 41F removed the sign-off requirement and only requires notice, the selection of which party to notify is no longer critical.

IMPORTANT NOTE:  As mentioned above, if you live in an independent city, you are NOT part of the surrounding county and officials serving there are NOT your CLEO.


Disclaimer:  As always, this information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other jurisdictions.

Posted in 41F, ATF, CLEO Notification, Form 1, Form 23, Form 4, NFA Trusts | Comments Off on Who is my CLEO?

Can I purchase a stripped lower from an out-of-state dealer?

I was recently contacted by a gun owner who attempted to purchase a stripped lower from an out-of-state dealer and the dealer refused the sale.  The dealer had completely confused the issue by telling him that stripped lowers must be sold as ‘pistols’.

The dealer was 100% correct that non-residents may not purchase frames or receivers from a licensed dealer.  However, their explanation as to why was just plain wrong.

Let’s see if we can untangle the issue …

  1.  18 U.S.C § 922(b)(3) makes it a crime for a dealer to sell any firearm, other than a rifle or shotgun, to a non-resident.
  2. Frames and receivers are neither handguns nor long guns.
  3. Therefore, frames and receivers do not fall withing the exception for rifles and shotguns and cannot be sold to non-residents.

The ATF covered this in the following 2009 Open Letter to FFLs.

Download (PDF, 104KB)

The part of the answer from the dealer that was wrong is his assertion that frames or receivers must be sold as ‘pistols’.  This is not correct at all.  The 4473 recognizes this distinction in box 16 and the associated instructions for this field.

Download (PDF, 903KB)

Receivers should always be transferred on a 4473 as an ‘other’.  This gives you maximum flexibility as to what may be built from the receiver.

Posted in 4473, 80% Lower, ATF, ATF Guidance Letters, BATFE, Federal Law, FFL Issues, Interstate Firearm Transfers, Non Resident Issues, Purchasing Firearms | Comments Off on Can I purchase a stripped lower from an out-of-state dealer?

What impact will the Fix NICS bill have on NICS appeals?

I was recently debating with a gun control advocate about the increased burden that is imposed on law-abiding gun owners when we add more and more records to the NICS system.  I was specifically discussing the prevalence of erroneous matches.

Her response to this was to dismiss it out of hand as not a problem since “there is an appeal process that they can use to correct those mistakes.”

If you are familiar with the NICS appeal process and its recent history, you will understand why I groaned at that statement.  As of today (May 4, 2018), the following screenshot shows where the FBI is in processing their backlog of NICS appeals.

Let me do the math for you.  They are processing appeals received two years and  four month ago!  This is due in large part to the fact that the FBI, during the Obama Administration, completely stopped processing NICS appeals.

To her credit, the gun control advocate admitted that this is not satisfactory due process and expressed shock at this state of affairs.

That brings us to the Fix NICS Bill which was passed as part of the  Consolidated Appropriations Act, 2018.  This bill amends the ‘Correction of erroneous system information’ provision of the Brady Handgun Violence Prevention Act, codified at 34 U.S. Code § 40901(g) by adding the following at the end:

For purposes of the preceding sentence, not later than 60 days after the date on which the Attorney General receives such information, the Attorney General shall determine whether or not the prospective transferee is the subject of an erroneous record and remove any records that are determined to be erroneous. In  addition to any funds made available under subsection (k), the Attorney General may use such sums as are necessary and otherwise available for the salaries and expenses of the Federal Bureau of Investigation to comply with this subsection.

This seemingly imposes a hard limit of 60 days to reply to NICS appeals.  However, I am less than hopeful.  There are two reasons for my scepticism:

  1.  There are no penalties or requirements imposed on the 61’st day.  Without that, the deadline has little meaning.  This is backed up by reason number 2.
  2. The text of the existing law (which is two years and 4 months behind) already requires that corrections be made ‘immediately’:

The prospective transferee may submit to the Attorney General information to correct, clarify, or supplement records of the system with respect to the prospective transferee. After receipt of such information, the Attorney General shall immediately consider the information, investigate the matter further, and correct all erroneous Federal records relating to the prospective transferee and give notice of the error to any Federal department or agency or any State that was the source of such erroneous records.

There does appear to be funding for increased staffing in the Fix NICS bill which might provide an incentive to reduce the backlog and live up to the new requirement.  We will have to watch their progress over the next few months to see if that is the case.

Posted in ATF, Background Checks, BATFE, Due Process, Federal Law, Fix NICS, NICS, Prohibited Persons, Purchasing Firearms | Tagged | Comments Off on What impact will the Fix NICS bill have on NICS appeals?

Do I need an FFL if all I am going to do is manufacture and sell cast bullets?

I received a call from a client last week asking this question. He wanted to start a business manufacturing cast bullets which he would then sell online and at flea markets. He was hoping that, because he was only dealing with bullets, he could avoid some or all of the regulatory burden imposed upon a completed ammunition manufacturer.

Specifically:

  • He had no intention of manufacturing any ammunition components other than cast bullets;
  • He had no intention of selling any ammunition components other than case bullets; and
  • He would simply have been manufacturing, and then selling, shaped lumps of inert metal.

Looking at it from that perspective, your initial inclination might be to conclude that he did not need to have an FFL.  After all, the active components of completed ammunition are the primers and the powder, neither of which he was going to manufacture or sell.

However, the actual answer is “Yes.  You do need a Federal Firearms License (FFL) to manufacture and sell cast bullets.

Why is this?” you ask.  It is because, despite the fact that the bullet is nothing more than shaped metal, it is an ammunition component.  And federal law requires you to have an FFL if you are going to ‘engage in the business of manufacturing ammunition for purposes of sale or distribution’.  The specific requirement may be found in 18 U.S.C. § 923 which reads (emphasis added):

(a) No person shall engage in the business of … manufacturing ammunition, until he has filed an application with and received a license to do so from the Attorney General. The application shall be in such form and contain only that information necessary to determine eligibility for licensing as the Attorney General shall by regulation prescribe and shall include a photograph and fingerprints of the applicant. Each applicant shall pay a fee for obtaining such a license, a separate fee being required for each place in which the applicant is to do business, as follows:

(1) If the applicant is a manufacturer—

(C) of ammunition for firearms, other than ammunition for destructive devices or armor piercing ammunition, a fee of $10 per year.

But wait” I hear you cry.  “That says ‘ammunition’, not components.

And you would be correct if that were where the analysis ended.  But, as is often the case in statutory interpretation, one must look to the definition of terms.  In this case, 18 U.S.C. § 921 provides us the definition of ‘ammunition’.

(a) As used in this chapter

(17)

(A) The term “ammunition” means ammunition or cartridge cases, primers, bullets, or propellent powder designed for use in any firearm.

Taking these two statutes together, it is clear that bullets are included in the definition of ‘ammunition’ for purposes of licensing.  But the bad news for my client didn’t end there.

We also needed to discuss ITAR registration.

ITAR stands for the International Traffic in Arms Regulations which were promulgated to implement the provisions of the Arms Export Control Act of 1976 (AECA).  The relevant section (emphasis added) is as follows:

Any person who engages in the United States in the business of either manufacturing or exporting defense articles or furnishing defense services is required to register with the Directorate of Defense Trade Controls. For the purpose of this subchapter, engaging in the business of manufacturing or exporting defense articles or furnishing defense services requires only one occasion of manufacturing or exporting a defense article or furnishing a defense service. Manufacturers who do not engage in exporting must nevertheless register.

As for what constitutes ‘defense articles’, 22 CFR 121.1 contains a complete listing under what is known as The United States Munitions List (USML).  The relevant section is contained in Category III of the list in subsection f:

(1) The components, parts, accessories and attachments controlled in this category include, but are not limited to cartridge cases, powder bags (or other propellant charges), bullets, jackets, cores, shells (excluding shotgun shells), projectiles (including canister rounds and submunitions therefor), boosters, firing components therefor, primers, and other detonating devices for the defense articles controlled in this category.

The short answer is that, those licensed to manufacture and sell cast bullets are also required to register for ITAR and pay the registration fee.

So … how bad is this fee?  It’s pretty bad.  If you are not engaged in exporting then you would be considered a ‘Tier 1’ registrant.  Therefore you would only have to pay the lowest possible fee.

A set fee of $2,250 per year is required for new registrants or registrants for whom the Directorate of Defense Trade Controls has not reviewed, adjudicated or issued a response to any applications during a 12-month period ending 90 days prior to expiration of the current registration.

These fees and licensing requirements represent a real barrier to entry into the industry and I look forward to the day when the reach of ITAR is limited to true export items.

Having said all of that, we are still left with the fact that, as it stands today, anyone who is planning to manufacture and sell cast bullets will require both an FFL and yearly ITAR registration.

Posted in Administrative Law, AECA, Ammunition, Ammunition Components, ATF, BATFE, Federal Law, FFL Issues, ITAR, Manufacturing, USML | Comments Off on Do I need an FFL if all I am going to do is manufacture and sell cast bullets?

Avoiding AOW status with a permanently attached muzzle device on a pistol with a vertical foregrip

In my latest article I discussed how permanently attached muzzle devices become part of the barrel length and overall length of a firearm.

With that understanding, a client asked me to revisit my earlier article about vertical foregrips.   As I noted in that article, the ATF’s position is as follows:

a)  Adding a vertical fore-grip to a pistol generally makes it an AOW subject to the requirements of the National Firearms Act (NFA).

b)  However, if the overall length (OAL) of the pistol is greater than 26 inches then adding a vertical fore-grip doesn’t result in the pistol becoming an AOW.

Therefore, if you have a pistol with an OAL which is less than 26 inches and you add a permanently attached muzzle device such that the new OAL exceeds 26 inches then a vertical foregrip may be added to the the resulting firearm without making it an AOW.

However, as the ATF made clear in their opinion letter on this issue (see below), concealing this firearm would make it an AOW so caution is advised when transporting or using a firearm thus constructed.

VFG_2011_Page_1

VFG_2011_Page_1

VFG_2011_Page_3

Finally, since a firearm thusly configured is no longer considered a handgun, it would no longer be concealable under a Virginia Concealed Handgun Permit.

If you have any further questions, do not hesitate to contact me.

Posted in AOW, AR Pistols, ATF, ATF Ruling, Barrel Length, BATFE, CHP, Concealed Handgun Permit, Criminal Law, Federal Law, Firearms Technology Branch, Overall Length (OAL), SBR, Short Barreled Rifles, Short Barreled Shotguns | Comments Off on Avoiding AOW status with a permanently attached muzzle device on a pistol with a vertical foregrip

When does the length of my flash hider or suppressor add to the barrel length or overall length of my firearm?

This is an understandably common question since the length of a firearm’s barrel and the overall length (OAL) of a firearm both factor into the determination of whether said firearm is regulated under the National Firearms Act (NFA).

The ATF covers this exact topic in Chapter 2 of the NFA Handbook.

Starting with barrel length they have this to say (emphasis added):

“The ATF procedure for measuring barrel length is to measure from the closed bolt (or breech-face) to the furthermost end of the barrel or permanently attached muzzle device. Permanent methods of attachment include full-fusion gas or electric steel-seam welding, high-temperature (1100°F) silver soldering, or blind pinning with the pin head welded over. Barrels are measured by inserting a dowel rod into the barrel until the rod stops against the bolt or breech-face. The rod is then marked at the furthermost end of the barrel or permanently attached muzzle device, withdrawn from the barrel, and measured.”

Now that we know a permanently attached muzzle device is considered an extension of the barrel we can turn to their definition of overall length:

“The overall length of a firearm is the distance between the muzzle of the barrel and the rearmost portion of the weapon measured on a line parallel to the axis of the bore.”

Some people find this definition concerning since it specifically says muzzle of the barrel but does not mention a permanently attached muzzle device as in the definition of barrel length above.  However, they clearly intend it to be read as included since we see this comment later in the handbook concerning removing items from the purview of the NFA:

“For example, a shotgun with a barrel length of 15 inches is an NFA weapon. If the 15- inch barrel is removed and disposed of, the remaining firearm is not subject to the NFA because it has no barrel. Likewise, if the 15 inch barrel is modified by permanently attaching an extension such that the barrel length is at least 18 inches and the overall length of the weapon is at least 26 inches, the modified firearm is not subject to the NFA. NOTE: an acceptable method for permanently installing a barrel extension is by gas or electric steel seam welding or the use of high temperature silver solder having a flow point of 1100 degrees Fahrenheit.”

That interpretation is also in keeping with the actual federal regulation (27 CFR 479.11) which states:

“The overall length of a weapon made from a shotgun or rifle is the distance between the extreme ends of the weapon measured along a line parallel to the center line of the bore.”

Finally, the ATF has issued an opinion letter which goes into much greater detail than the NFA Handbook and which specifically answers this question (See Question 4 on Page 3 below).

VFG_2011_Page_1

VFG_2011_Page_1

VFG_2011_Page_3

In summary, the length of a permanently attached muzzle device is added to both the barrel length and the OAL of a firearm for purposes of evaluating whether said firearm falls under the purview of the NFA.

Posted in AOW, ATF, Barrel Length, BATFE, Federal Law, Overall Length (OAL), SBR, Short Barreled Rifles, Short Barreled Shotguns | Comments Off on When does the length of my flash hider or suppressor add to the barrel length or overall length of my firearm?

May those prohibited from owning firearms due to a mental health issue hunt with black powder rifles?

I received a call from a potential client last week who was confused about the recent change to Virginia law regarding black powder firearms.

The conversation went something like this:

Client: “I heard that even if you can’t legally own firearms, you can now hunt with black powder rifles.  Is that right?”

Me:  “There was a change that went into effect on July 1st of this year but it’s quite a bit more complex than that. It depends upon the nature of your felony offenses and exactly what type of black powder firearm you want to use.  I have an article on my website that goes into more detail about the specifics.”

Client: “I saw that but it didn’t help me with my question.  I don’t have any felonies.  In my case I was involuntarily committed for treatment of depression over a decade ago. I would really like to be able to hunt again with firearms.  Does this change do anything for me?”

Unfortunately for this potential client, the answer I had to give him was a resounding ‘No‘. The recent change to state law only allows those whose prohibition is based on certain felonies to purchase, possess, transport, and use certain black powder firearms.  For more details on that scenario I would encourage you to read the original article which is linked above.

But for those prohibited from owning firearms because they have been acquitted of a crime by reason of insanity (§ 18.2-308.1:1), adjudicated legally incompetent or mentally incapacitated (§ 18.2-308.1:2), or involuntarily admitted or ordered to outpatient treatment (§ 18.2-308.1:3) there has been no equivalent change.

Under Virginia case law (see Armstrong v. Commonwealth, 549 S.E.2d 641), a firearm is any device that is made to expel a projectile by the combustion of gunpowder or other explosive.  Black powder firearms clearly meet this definition and therefore remain barred to those whose prohibition is based upon mental health issues.

If you are in a similar situation and would like to discuss your chances of getting your gun rights restored, please feel free to contact me for a free consultation.

Posted in Black Powder Firearms, Criminal Law, Gun Rights Restoration, Hunting, Mental Health, Prohibited Persons, Purchasing Firearms, Virginia Law | Comments Off on May those prohibited from owning firearms due to a mental health issue hunt with black powder rifles?