Moving Individually Owned NFA Items to Your Trust

This guide will walk you through every step of the process to move individually owned NFA items to your NFA Trust and make it as easy as possible.  The fields referenced are based upon the September 2019 revision of the Form 4.  As new revisions of the form are released, I will update this guide.

Getting Started

The Form 4 is available for download from the ATF website.  You should save it to your computer and open it with Adobe Reader or your preferred PDF editor on your computer (rather than editing it in your browser or on a phone or tablet where the built in automations will NOT work correctly) then it will auto-copy the data you type into the ‘ATF Copy’ to the ‘Registrant Copy’ and the ‘CLEO Copy’.

Form 4 – Page 1

  • Box 1 will be checked for $0 unless you are transferring a machinegun or destructive device.  The changes that took place in 2025 and went into effect on January 1, 2026 from the Big Beautiful Bill removed the excise tax on all other NFA items.
  • Box 2 should contain the name of your trust (exactly as it appears on the header of the trust document) and the mailing address for the location where the item will initially be stored.
  • In Box 2 you should also check the box for TRUST.
  • Box 3a should contain your name (exactly as it appears on the current (individual) tax stamp) and your current mailing address.
  • Box 3b should contain your email address.
  • Box 3c should contain your telephone number.
  • Box 3d and 3e should usually be left blank.
  • Boxes 4a through 4h should be copied directly from the current individual tax stamp.
  • Unless you own the item as a C&R FFL holder, then boxes 5, 6, 7, and 8 should be left blank.
  • Sign your name in Box 9.  Important:  The ATF requires all signatures to be in either blue or black ink.
  • Box 10 should contain your name (as it appears on the current tax stamp) followed by “- SELF”.
  • Box 11 should contain the current date.

Form 4 – Page 2

  • Box 12 should contain the information about your CLEO.
  • Box 13 should have the name of the trust in the first blank and ‘all lawful purposes‘ in the second blank.
  • Box 14, 15, 16, 17, 18 and 19 should be left blank.  For trust applicants, these background questions and photos will be part of a separate form for each ‘responsible person’ (Form 23) for which I will provide instructions further down in this guide.
  • On the bottom of Page 2 sign your name and add “as trustee” at the end then enter the date in the accompanying field.  Important:  The ATF requires all signatures to be in either blue or black ink.

Form 4 – Page 3

  • Box 20 should contain the number of responsible persons on the trust.  I have a detailed article here laying out which persons on your trust are considered ‘responsible persons’ but the short answer is that you are a responsible person and so are those people listed on Schedule B of your trust.  If you want to remove joint trustees from your Schedule B before submitting your application I have a guide to doing so here.
  • Box 21 should contain your full legal name and the full legal names of all those on Schedule B of your trust.
  • Box 22 should contain your method of payment and, if you are paying with a credit card, the information about the credit card and the amount being paid.  You only need to sign in Box 20 if you are paying with a credit card.  Important:  The ATF requires all signatures to be in either blue or black ink.

Turning to the Form 23

A copy of the new ‘responsible person’ form 5320.23 (Form 23) will need to be completed by each ‘responsible person’ of the trust listed in Box 21 of the Form 4.

Important Note:  Your fellow ‘responsible persons’ will find it much easier to complete this form if they have a copy of the completed Form 4 in front of them.  

The Form 23 may be downloaded from the ATF website. It is well designed with fillable fields which auto-transfer the data to additional copies (this only works if you use a PDF editor on your computer instead of on your browser, phone, or tablet).  I will instruct you where to send each copy later in this guide.

You, and any Joint Trustees listed on Schedule B of your trust, should download the form and each one complete it according to the following instructions:

Form 23 – Page 1

  • In Box 1 you should check the box for Form 4.
  • In Box 2 you should copy the trust name and address from Box 2 on the Form 4.
  • In Box 3a you should put your full legal name and your home address.
  • In Box 3b you should put your telephone number.
  • In Box 3c you should put your email address.
  • If you have changed your name at any time during your life, including being married, then Box 3d should contain all other names you have ever used.
  • In Box 3e you will affix a 2×2 passport-quality photo taken within the last year (on the ATF copy of the form only).  As I noted here, many NFA dealers offer in-store photography options so you should check with your local gun store.  Failing that, Walgreens is a common provider of this service in many towns.
  • Box 3f should contain your Social Security Number.  This is an optional field but including it should dramatically decrease your processing time.
  • Box 3g should also contain your date of birth.
  • Box 3h should contain your ethnicity
  • Box 3i should contain your race
  • In Box 4a, you should copy the type-of-firearm from the Form 4
  • In Box 4b you should copy the mfg/maker/importer name and address from the Form 4
  • In Box 4c you should copy the model from the Form 4
  • In Box 4d you should copy the caliber and UOM from the Form 4
  • In Box 4e you should copy the serial number from the Form 4
  • Box 5 should contain the information regarding the CLEO whose jurisdiction includes the home address in Box 3a of this form.

Form 23 – Page 2

  • You will need to answer the questions in Boxes 6, 7, 8, and 9 as they apply to you, the person completing the form.  You will need to answer them truthfully as any errors may be prosecuted as perjury!
  • Note: If you have been convicted of a felony but have since had your gun rights restored then the instructions state you should answer question ‘No’ to the question about whether you have been convicted of a felony.  However, I strongly advise you to attach a copy of your restoration paperwork to the Form 23 when submitting it to the ATF.
  • You will sign the certification following Box 9.  (More about this in the signing section below)
  • You should enter the date in the field to the right of the signature block.

Printing The Completed Form 23

Once you have completed the Form 23, you will need to print it.  It will print 2 copies.  You should now affix your photo to the ATF copy of the Form 23 only. (DO NOT USE STAPLES)

Signing the Completed Form 23

The only place you will need to sign the Form 23 is following the certification statement below Box 9.  You do NOT add “as trustee” to your signature on this form.

Do not forget to sign both copies of the Form 23.

Important:  The ATF requires all signatures to be in either blue or black ink.

Notifying Your CLEO

The Settlor of the trust will need to mail his or her CLEO (From Box 5 of the Form 23) the CLEO copy of the Form 4 and the CLEO copy of their Form 23.

All other responsible persons (in the rare event you have them) will only need to mail his or her CLEO (From Box 5 of their Form 23) the CLEO copy of their Form 23.

Important Note:  The CLEO copy of the Form 23 does not have a photo affixed.  You should also not send fingerprint cards to the CLEO.

Fingerprint Cards

Each Form 23 to be sent to the ATF will need to be accompanied by fingerprints of the responsible person taken on TWO FBI (FD-258) fingerprint cards.  As I noted here, many NFA dealers offer in-store fingerprinting so you should check with your local gun store.  Failing that, you should be able to get fingerprinted at your local law enforcement agency.  No matter who does the fingerprinting, you should make sure that they use the correct FD-258 cards.

Mailing the Completed Form 4 Packet to the ATF

Now we need to prepare the packet to mail to the ATF.  Note that If you are building more than one NFA item, you will need a separate packet for each item.

This packet should include:

  • The first 2 copies of the completed Form 4 with original signatures in blue or black ink on both copies.  (These are marked ATF Copy and Registrant Copy on the bottom of the forms)
  • The ATF Copy of the Form 23 for each responsible person of the trust (in the rare event you have them) with photos affixed and fingerprint cards included. (DO NOT STAPLE)
  • A single copy of your notarized trust instrument (including all schedules and amendments)
  • Payment for the amount of the tax ($200) (if machinegun or destructive device) payable to BATFE (unless you entered credit card info on the Form 4)

The entire packet should be mailed to:

National Firearms Act Division
Bureau of ATF
PO Box 5015
Portland, OR 97208-5015

If this guide leaves any questions unanswered, please feel free to contact me.

Posted in 41F, ATF, BATFE, CLEO Notification, FAQ, Form 4, NFA Transfers, NFA Trusts, Tax Stamp | Comments Off on Moving Individually Owned NFA Items to Your Trust

Private sales to Curio and Relic license holders under Virginia’s new universal background check law

Since Virginia’s so-called ‘universal background check’ law went into effect on July 1, 2020, there have been a number of questions about its applicability to different circumstances.

I have previously written about whether one could still gift a firearm under Virginia’s new universal background check law.

Today I will address the issue of whether Virginia’s new universal background check law negates any of the benefits of having a Curio and Relic Federal Firearms License (C&R).

For those unfamiliar with a C&R license, it is a federal firearms license which allows the holder to directly purchase those firearms that are classified as ‘curios or relics’ without undergoing an individual background check for each item.

So what kinds of firearms are we talking about?  To quote the ATF website linked above:

To be recognized as C&R items, firearms must fall within one of the following categories:

  • Firearms which were manufactured at least 50 years prior to the current date, but not including replicas of such firearms;
  • Firearms which are certified by the curator of a municipal, state, or federal museum which exhibits firearms to be curios or relics of museum interest; and
  • Any other firearms which derive a substantial part of their monetary value from the fact that they are novel, rare, bizarre, or because of their association with some historical figure, period, or event.

Earlier today, I received an email from a client who wanted to sell a C&R firearm to a C&R license holder (both were Virginia residents).  He wanted to know whether he could do so without conducting the background check since the buyer was a license holder.

Let’s look at the language of the new law (emphasis added):

§ 18.2-308.2:5. Criminal history record information check required to sell firearm; penalty.

A. No person shall sell a firearm for money, goods, services or anything else of value unless he has obtained verification from a licensed dealer in firearms that information on the prospective purchaser has been submitted for a criminal history record information check as set out in § 18.2-308.2:2 and that a determination has been received from the Department of State Police that the prospective purchaser is not prohibited under state or federal law from possessing a firearm or such sale is specifically exempted by state or federal law. The Department of State Police shall provide a means by which sellers may obtain from designated licensed dealers the approval or denial of firearm transfer requests, based on criminal history record information checks. The processes established shall conform to the provisions of § 18.2-308.2:2, and the definitions and provisions of § 18.2-308.2:2 regarding criminal history record information checks shall apply to this section mutatis mutandis.The designated dealer shall collect and disseminate the fees prescribed in § 18.2-308.2:2 as required by that section. The dealer may charge and retain an additional fee not to exceed $15 for obtaining a criminal history record information check on behalf of a seller.

While the initial language seems to indicate that it reaches all ‘persons’ selling firearms, the highlighted section incorporates the definitions and provisions of § 18.2-308.2:2 which provides in relevant part that:

H. The provisions of this section shall not apply to (i) transactions between persons who are licensed as firearms importers or collectors, manufacturers or dealers pursuant to 18 U.S.C. § 921 et seq.; (ii) purchases by or sales to any law-enforcement officer or agent of the United States, the Commonwealth or any local government, or any campus police officer appointed under Article 3 (§ 23.1-809 et seq.) of Chapter 8 of Title 23.1; or (iii) antique firearms or curios or relics.

This subsection clearly exempts those licensed as Curio and Relic collectors from the provisions of § 18.2-208.2:2, which is statutorily incorporated as equally applicable to the requirements of § 18.2-308.2:5.

Therefore, a Virginia resident may sell a C&R firearm to a C&R license holder without conducting the background check that would otherwise be required in a private sale.


Disclaimer:  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 states. If you have further questions about this topic, please feel free to contact me for a free consultation.

Posted in ATF, Background Checks, BATFE, Black Powder Firearms, C&R, Criminal Law, Curio and Relic, FFL 03, FFL Issues, Private Sales, Universal Background Checks, Virginia Law | Comments Off on Private sales to Curio and Relic license holders under Virginia’s new universal background check law

ATF Withdraws Their Ill-Conceived Guidance on Stabilizing Braces

Last week I wrote an article in which I discussed the ATF’s published guidance document in the Federal Register entitled Objective Factors for Classifying Weapons with “Stabilizing Braces”.

In that article, I noted that there were numerous problems with the supposed ‘objective factors’ laid out in the guidance document.  I also provided several comments for people to use as starting-points for their own comments during the ‘notice and comment’ timeframe for the guidance document.

During the first week of the notice and comment period, there were apparently tens of thousands of comments submitted by concerned owners and manufacturers about the arbitrary and capricious nature of the guidance and the complete lack of notice it gave to those who would be subject to its ‘case-by-case’ interpretation.  In fact, as of the writing of this article, there were an impressive 69,485 comments.

In addition, on December 22nd, ninety members of Congress sent a letter to the ATF addressing the same concerns.  See the letter and the co-signers below.

How much impact did your comments and the letter from these representatives have?  Well … even though the notice and comment period was only slated to run through January 4, 2021, the ATF announced on December 23rd that they were withdrawing the proposed guidance document.

Download (PDF, 105KB)

While they do not give any specific reason why they are withdrawing the proposed guidance document, I have to suspect that it was at least partially because their legal team realized that our complaints were valid and that ‘objective guidance’ and ‘case-by-case determination’ are antithetical concepts.

Thanks to all who submitted comments and to the members of Congress who were brave enough to support the rights of their constituents.  I do not believe this is the last we will hear from the ATF as the Biden Administration takes power and attempts to implement the draconian gun control ideas they espoused on the campaign trail.  But at least for now, we have a small victory.

Posted in Administrative Law, AR Pistols, ATF, ATF Guidance Letters, ATF Ruling, BATFE, Due Process, Federal Law, Firearms Technology Branch, Regulatory Rulemaking, SBR, SBS, Short Barreled Rifles, Short Barreled Shotguns, Stabilizing Brace | Comments Off on ATF Withdraws Their Ill-Conceived Guidance on Stabilizing Braces

May I still gift a firearm under Virginia’s new universal background check law?

With the holiday season upon us, I am getting quite a few emails and phone calls asking whether Virginia’s new universal background check law prevents the gifting of firearms.

I want to start by noting that it is federal law which governs the gifting of firearms to recipients across state lines and this article is solely focused on Virginia residents gifting other Virginia residents.

Having said that, the law in question, which was passed during the 2020 General Session, is codified at § 18.2-308.2:5 of the Code of Virginia and provides in part that:

A. No person shall sell a firearm for money, goods, services or anything else of value unless he has obtained verification from a licensed dealer in firearms that information on the prospective purchaser has been submitted for a criminal history record information check as set out in § 18.2-308.2:2 and that a determination has been received from the Department of State Police that the prospective purchaser is not prohibited under state or federal law from possessing a firearm or such sale is specifically exempted by state or federal law.

Note the portions that I have bolded.  The key takeaway is that the new law only applies to the sale or trade of firearms for something of value.  And while our loved-ones, and their happiness are priceless to us, gifts and inheritance are not governed by the new law.

In short, you may feel free to gift firearms during the holiday season or at any other time of year without the involvement of a licensed dealer so long as the gift-giver and the recipient are both residents of Virginia and the recipient is not otherwise prohibited from possessing firearms under state or federal law.


Disclaimer:  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 states. If you have further questions about this topic, please feel free to contact me for a free consultation.

Posted in 4473, Background Checks, Gifting Firearms, Private Sales, Universal Background Checks, Virginia Law | Comments Off on May I still gift a firearm under Virginia’s new universal background check law?

ATF is trying to redefine pistol braces yet again

UPDATE:  The guidance document has been withdrawn.


Before we talk about the latest development, let’s take a second to bring everyone up to speed on the long history of this issue.

March 2014 – They are fine

Back in March of 2014, a police officer from Colorado wrote to the ATF asking whether firing an AR pistol from the shoulder using a Sig brace as a shoulder pad would cause the pistol to be reclassified as an SBR.  They effectively said ‘no‘.

November 2014 – They are mostly fine

Then, in November of 2014, in response to a request for classification from Black Aces Tactical, they backpedaled significantly on their previous position, but did not actually reverse it.

January 2015 – All shouldering is banned

But they were just getting started down this twisted and winding road of redefinition and obfuscation.  On January 16, 2015, the ATF released an open letter on the stabilizing brace issue in which they took the position that:

1)  “Any person who redesigns a stabilizing brace for use as a shoulder stock makes a NFA firearm when attached to a pistol with a rifled barrel under 16 inches in length or a handgun with a smooth bore under 18 inches in length.  

2)  “Redesign is defined as ‘to alter the appearance or function of’.

3)  “Since the pistol stabilizing brace was neither ‘designed’ nor approved to be used as a shoulder stock, use as a shoulder stock constitutes a ‘redesign’ of the device because a possessor has changed the very function of the item.

4)  “Any individual letters stating otherwise are contrary to the plain language of the NFA, misapply Federal law, and are hereby revoked.”

March 2017 – Suddenly they are fine again … mostly

On January 5, 2017, the counsel for SB Tactical, LLC sent a letter to ATF Acting Director Thomas Brandon requesting reconsideration of the position taken in the January 16, 2015 open letter.

The ATF officially responded to this request on March 21, 2017 in a letter in which they claimed they were not reversing their previous position but in effect did just that. The entire letter is linked above but the key elements from the letter are:

“With respect to stabilizing braces, ATF has concluded that attaching the brace to a handgun as a forearm brace does not ‘make’ a short-barreled firearm because … it is not intended to be and cannot comfortably be fired from the shoulder.”

“Therefore, an NFA firearm has not necessarily been made when the device is not re-configured for use as a shoulder stock — even if the attached firearm happens to be fired from the shoulder.”

“To the extent the January 2015 Open Letter implied or has been construed to hold that incidental, sporadic, or situational ‘use’ of an arm-brace (in its original approved configuration) equipped firearm from a firing position at or near the shoulder was sufficient to constitute a ‘redesign,’ such interpretations are incorrect and not consistent with ATF’s interpretation of the statute or the manner in which it has historically been enforced.”

December 2020 – Forget all that we said in the past.  An SBR is whatever we say it is on any given day

To those who are able to read sarcasm, let me just say that “I am certain the fact that this was released shortly after the Biden transition team met with the ATF is purely coincidental.”

On Friday December 18, 2020 the ATF published a request for comments in the Federal Register entitled Objective Factors for Classifying Weapons with “Stabilizing Braces”.

In that ‘guidance document’, the ATF basically says that the manufacturer’s intent, and even the end-user’s intent, does not matter.  All that matters is the ‘objective design features’ of the item (as determined by the ATF of course).

In their own words:

If ATF’s classification of a submitted sample demonstrates that the objective design features of the firearm, as configured, do not support the manufacturer’s purported intent and characterization of the accessory on that particular firearm as a “stabilizing brace” or “arm brace,” ATF will classify the firearm based on the objective design features, as Federal law requires.

They go on to list 15 different criteria to identify said ‘objective design features’ (none of which provide quantitative guidance) but then goes on to say that even this list isn’t really the final word.

These factors are based on known stabilizing braces and similar attachments. No single factor or combination of factors is necessarily dispositive, and FATD examines each weapon holistically on a case-by-case basis. Because of changes in design or configuration of a weapon or attachment, as well as future changes in technology, this list is not exhaustive and other factors may become relevant to a weapon’s classification. Moreover, in addition to the objective design features of a submitted sample, FATD also considers the marketing of both the item and the firearm to which it is attached, compared to the manufacturer’s stated intent when submitting an item.

The Issues

These criteria are so arbitrary and capricious that they give no real guidance to either the industry, who will be gambling R&D dollars if they design products intended for this market space, or to buyers, who risk having the ATF visit their homes, demanding that previously legal products be surrendered on a whim.

Without concrete guidance (comprised of quantifiable design features), this will only serve to have a chilling effect on the entire marketplace for stabilizing braces.  Given the stated animosity toward gun owners expressed by the incoming administration, I cannot help but believe that this is an intended ‘feature’ rather than a ‘bug’.

The other part of the proposal that concerns me is the seemingly kind offer to allow those who have items newly-deemed to be subject to NFA regulation to take advantage of an expedited registration process and a ‘free’ tax stamp.  Given the Biden administration’s stated goal of attempting to classify most modern sporting firearms as subject to the NFA, I cannot help but think this might be a trial-run for such an attempt to get gun owners to register their AR and other semi-auto firearms in the NFA.  I should note that I have no information indicating this to be true but it seems far too convenient to be mere coincidence.

So what can you do to help?

The ‘significant guidance document’ aspect of the rulemaking process requires that the public and those affected have an option to comment on the guidance document but this period is much less than for a formal rule promulgation.  This is known as the ‘notice and comment period.’  The notice and comment period for this guidance document ends on January 4th, 2021 (the mere 14 day comment period over the holidays is of course yet another completely innocent coincidence I am sure).

We need you to make your voice heard!  At the bottom of this article is a link that will take you to Regulations.gov where you may submit your own comment.  The following are suggested comments you might consider:

Suggested Comment #1

Policymaking which imposes such a significant burden upon both citizens and industry should not be undertaken lightly.  Here, we have burdensome definitional changes / expansions which have the potential to damage or destroy segments of one of America’s few growing industries and it is not based upon an identified problem.  Rather, it is based upon mere conjecture.

Suggested Comment #2

The supposed ‘criteria’ laid out in this guidance document are so arbitrary and capricious that no reasonable person could look at them and make an informed decision.  The ATF admits as much when they say that evaluations will take place “on a case-by-case basis.”  This fails to give adequate notice to those subject to the rules thereby imposed against them.  This violates both the procedural and substantive due-process rights of manufacturers, buyers, and those who already own such items.

Suggested Comment #3

Without concrete guidance (comprised of quantifiable design features that place a product in the purview of the NFA), this will only serve to have a chilling effect on the entire marketplace for stabilizing braces.  The ATF is empowered to regulate NFA items based upon the clear language of the act, not upon an “I know it when I see it” arbitrary system.  It is past time that Congress revisits and refines the deference granted to the administrative aspect of the legislative branch.

Suggested Comment #4

ATF has failed to consider less intrusive forms of regulation that might accomplish the same goals.  By specifically defining design characteristics that bring an item under the purview of the NFA, they could achieve the same stated goal without exposing law-abiding citizens to the chilling effect of this arbitrary and capricious definitional scheme.

Suggested Comment #5

Passage of this proposed rule would do nothing to enhance safety but would only place additional bureaucratic roadblocks in front of law-abiding collectors and swamp ATF staff who are already overwhelmed.  The result would be a drastic increase in the processing time for NFA applications and potentially a collapse of the stabilizing brace industry.

These are merely suggestions.  You are welcome to pick one or more of the above comments or write your own but now that you know just how significant the issue is we are facing, I urge you to head on over to the Regulations.gov page for the proposed rulemaking and make your voice heard!

Posted in Administrative Law, AR Pistols, ATF Guidance Letters, ATF Ruling, BATFE, Due Process, Federal Law, Firearms Technology Branch, Manufacturing, NFA Trusts, Regulatory Rulemaking, SBR, Short Barreled Rifles, Short Barreled Shotguns, Stabilizing Brace, Tax Stamp | Comments Off on ATF is trying to redefine pistol braces yet again