The industry is moving quickly to minimize the impact of 41F

Posted on July 13, 2016 by John Pierce

WorkaroundThe only thing more powerful than a giant bureaucracy is the inventiveness of free enterprise.

Therefore, it is no surprise that the firearms industry is already hard at work minimizing the impacts of 41F on the use of NFA trusts.

To understand what the industry is doing, let’s first let’s take a quick look at what exactly changed as part of 41F.  After all, there is a lot of misinformation concerning 41F that is being spread by word of mouth and the internet.

As a trust applicant, what exactly will you have to do after 41F that you didn’t have to do before?

1)  Each ‘responsible person’ (more about that later) of the trust will have to complete and submit a  Form 5320.23 (Form 23).

2)  This form will need to be accompanied by fingerprints of the responsible person taken on 2 FBI (FD-258) fingerprint cards.

3)  This form will need to have a passport quality / size photo affixed.

4)  A copy of the form will need to be sent to the CLEO of the responsible person.

That’s it.  Other than that, NFA trusts will continue to offer the same usage, asset protection, and estate planning benefits as before.

So how can the industry help to alleviate the additional application burden?  One answer is to provide a one-stop experience for getting fingerprinting and photos.

Silencer Shop was the first (to my knowledge) to announce such an initiative with their Kiosk System.  But now that 41F is in effect, the floodgates have opened and almost all major Class 3 dealers have announced plans to offer in-store fingerprinting and photographs.

One example is SafeSide Tactical in Roanoke Virginia.  Starting today they will take your fingerprints, take your photo, help you to complete the Form 23, and mail it to your CLEO, all for a nominal per-responsible-person fee.

They will offer this service to both those purchasing NFA items on a Form 4 and those building items on a Form 1.  However, the fee will be discounted for those purchasing items in-store.

Green Top in Richmond has announced plans to have a Silencer Shop kiosk in-house.

While I have not had time to compile a comprehensive list, I predict that almost every single Class 3 dealer in the state will ultimately offer some form of this service.

What do I base this prediction upon?

  1.  Industry leaders are already doing it.
  2. The cost for the equipment and training is negligible.
  3. It is an additional revenue stream
  4. Any dealer who does not ultimately offer this service will be at a significant competitive disadvantage.

So whether you are new to the NFA world or an experienced collector you should rest assured that an NFA Trust will continue to be the preferred method of ownership.

FAQ

Question:  What are ‘responsible persons’?

Answer:  There has been a lot written about this topic but as far as trusts I have developed are concerned, only the Settlor and the joint/co-trustees named on Schedule B are considered ‘responsible persons’.

Question:  Does adding trustees to my trust require a Form 23 be submitted with fingerprints and photographs?

Answer:  No.  Not unless you subsequently file a Form 4 or a Form 1.  I will be writing more about this over the next few days.

Question:  Is it acceptable to the ATF for non-law enforcement to take fingerprints for the Form 23?

Answer: Yes.  ON page 150 of 41F they note that

“Fingerprints may be taken by anyone who is properly equipped to take them (see instructions on ATF Form 1, Form 4, Form 5, and Form 5320.23). Therefore, applicants may utilize the service of any business or government agency that is properly equipped to take fingerprints. Depending on where the fingerprints are taken, the service may require an appointment, and appointment availability may be limited. Some businesses provide evening and weekend appointments and a number of private companies provide mobile fingerprinting services at a location chosen by the customer to be fingerprinted. Additionally, some mobile fingerprinting services offer special pricing to groups of individuals who need to be fingerprinted.”

 

Posted in 41F, 41P, Administrative Law, ATF, BATFE, CLEO Notification, FFL Issues, Form 1, Form 23, Form 4, NFA Trusts | Comments Off on The industry is moving quickly to minimize the impact of 41F

Filing last minute paper Form 1’s

Posted on July 12, 2016 by John Pierce

We have finally arrived at the final day to submit Form 1 and Form 4 applications and have them processed under the pre-41F rules.

As anticipated and feared, the eForms system has been flaky and unavailable for the last several days.  This morning it is completely unresponsive.

I have been getting literally dozens of calls from clients who want to file last minute Form 1’s and I am telling them that it is time to go paper.  Since most of us have been spoiled by the eForms system, here is a refresher on doing the paper Form 1 process.

** This guide was intended for use on July 12th only and is now superseded ** 

** Click here for a complete guide to filing the new Form 1 **

Important Note: We are going to use the old version of the Form 1 (a fillable version is available here).  This version will be made obsolete tomorrow since the ATF will only accept the new Forms for any applications made July 13th and later but for today’s purposes, this is what we need.

Let’s start with the top of page 1.  The following image is a loop of how to fill out these fields.  

*** Click on the image for a larger and clearer version.

A few comments about this section of the Form 1.

  1.  We leave Trade Name blank.
  2. The address in 3b is your Mailing Address.  If your physical address is different then it goes into 3c.  Otherwise, we leave 3c blank.
  3. Virginia is one of the few states where some independent cities are outside of counties. If you live in an independent city (like Alexandria) instead of the county then put your city in 3d (e.g.  “Alexandria City”).   Otherwise you simply put your county name.
  4. When entering the Manufacturer Name and Location, Model, and Serial Number, it is critical that you enter them exactly as they are engraved on the lower!  The ATF has been rejecting a large number of applications recently based upon bad info in these fields.
  5. Do NOT put ‘Multi’ as the caliber.  While you may have multiple uppers for your registered lower, you need to declare a specific primary configuration in this application and you need to retain the ability to return to this configuration.
  6. If you have a foreign manufactured firearm, you put the name and location of the original manufacturer in 4a, not the importer (which might also be engraved on the lower).
  7. If you are manufacturing your own suppressor, or your own SBR based on an un-serialized 80% lower, then your trust is the manufacturer and you should put the trust name, city, and state in 4a.  In this scenario, you will also need to designate the model name and the serial number.
  8. The options for 4b are:  silencer, machinegun, short-barreled rifle, short-barreled shotgun, or destructive device.  There have been unconfirmed reports of ATF rejecting applications for putting ‘Suppressor’ instead of ‘Silencer’ in this field.

The bottom of page 1 has only a few fields we need to fill in.

*** Click on the image for a larger and clearer version.

 

The only comment I have here is that you should not forget to sign in box 7.

The top of page 2 is the law enforcement certification which does not apply to trust applicants but you will need to answer the questions in box 11 as they apply to you, the person completing the form.  In the example below, I am completing them as I personally would answer them but you will need to answer them truthfully as they apply to you!

*** Click on the image for a larger and clearer version.

Paper3

There are two notes here.

  1. If you are a resident alien here on a non-immigrant visa then you will also need to complete questions 13 through 16.
  2. Until tomorrow, photographs are not required for trust applicants and you may skip box 12.

Finally we come to the last page which is really only concerned with payment.  I generally recommend paying via personal check but there is no wrong answer here as long as you make sure to submit a valid payment.

*** Click on the image for a larger and clearer version.

Paper4

If you are paying via credit card then do not forget to sign at the bottom of this section.

That’s it as far as filling out the form is concerned.  But we are not done yet.  We need to get this form printed properly and put together a complete packet to mail to the ATF.  Let’s start with how to print out and sign the filled-in form.

  1. You must print the form front and back (double-sided). If you print it out front side only, (which would be the default for 99% of all printers) then your otherwise complete application will be rejected.
  2. You must print and sign 2 copies for each item you are building.
  3. The ATF requires all signatures to be in either blue or black ink.
  4. When signing, sign your name as you normally would and then add “, as Trustee” at the end.

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:

  • 2 copies of the completed Form 1 printed front and back as noted above with original signatures in blue or black ink on both copies
  • 2 copies of your notarized trust instrument (including all schedules)
  • Payment for the amount of the tax ($200) payable to BATFE

The entire packet should be mailed to:

National Firearms Act Branch
BATFE
P.O. Box 530298
Atlanta, GA 30353-0298

In order to be processed under the pre-41F rules, applications must be postmarked with today’s date.  You should make sure to take the packet to the counter at your local post office to insure it is postmarked.

If this guide leaves any questions unanswered, I will be taking calls all day in the order they are received.

Posted in 41F, 41P, ATF, BATFE, eForms, Form 1, NFA Trusts | Comments Off on Filing last minute paper Form 1’s

The ATF has finally posted updated guidance on 41F

Posted on July 8, 2016 by John Pierce

DirectionWe have been waiting for final guidance and approved forms from the ATF on the 41F implementation for some time and they have finally posted an update on their website which includes links to the new forms.

Much of what they provide in this link is in keeping with our previous understanding of how 41F would be implemented.

Here are a few key clarifications:

1)  The ATF has stated on a number of occasions that applications postmarked (in the case of paper forms) or submitted (in the case of eForms) will be processed under the old rules if the were submitted / postmarked “by July 13th”.  Here, they make it clear that what they mean is “prior to July 13th.”

2)  Any applications submitted on or after July 13th must be on the new forms or they will be rejected.

3)  All ‘responsible persons’ on a trust will need to complete the new Form 5320.23 (Form 23) and attach a passport size / quality photo taken within the previous year, and  provide two FD-258 fingerprint cards.  I will be posting more about this requirement and how the industry is working to simplify compliance in my next article.

4)  As for who is considered to be a ‘responsible person’ on a given trust, this is based upon the powers and level of control granted to a given party by the trust instrument.  In the trust instruments I have prepared for my clients, I believe that only the Settlor and the Joint Trustees, as laid out on Schedule B, will fall under this definition.

3)  The final rule also requires that “[t]he applicant on the Form 1 and the transferee on the Forms 4 and 5 shall forward a completed copy of the application to the chief law enforcement officer of the locality in which the applicant or transferee is located.”  By not placing a specific requirement upon the applicant as to how the ‘forwarding’ is to be accomplished, it appears that by signing the new Form 23, the ‘responsible person’ is self-certifying that they have complied.

4)  In addition to the applicant forwarding a copy of the Form 1 / 4 / 5 to their CLEO, all ‘responsible persons’ must also send a copy of their completed Form 23 to their local CLEO in the jurisdiction where they reside.  As you can imagine, this leaves open a number of questions concerning joint trustees in non-NFA states.

And there are still other questions to be answered:

  • How will the ‘preceding 24 month’ exclusion be implemented?
  • Is eForms gone for good after all the money the ATF has spent?

I will be following up shortly with several articles, including one on how to add or remove joint trustees.

Stay tuned …

Posted in 41F, 41P, ATF, BATFE, CLEO Notification, eForms, Form 1, Form 23, Form 4, Form 5, NFA Transfers, NFA Trusts | Comments Off on The ATF has finally posted updated guidance on 41F

The old wives’ tale about black powder firearms and felons

Posted on March 13, 2016 by John Pierce

Black_PowderUPDATE:  As of July 1, 2017 this article no longer accurately reflects current Virginia law.

See my updated article for more details.

It seems like I hear the question at least once a week.

“Can convicted felons possess black powder firearms?” 

And often when I answer the question for a client, I will get a call back from their friend/brother/cousin who will tell me that I am wrong because they have been told differently by their local game warden/deputy/gun store owner.

It is a misconception that simply will not die.

The fact that both federal and state law exempts certain black powder firearms from specific regulations is at the heart of the confusion.

Let’s look at the details.

Federal law, at 18 U.S.C. § 921(a)(3), defines a firearm as:

(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

‘Antique firearm’ is specifically exempted from the definition.  But what exactly does that term mean?  Further in the same code section, we find the following:

(16) The term “antique firearm” means—
(A) any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or
(B) any replica of any firearm described in subparagraph (A) if such replica—
(i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or
(ii) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or
(C) any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term “antique firearm” shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.

Note that even under federal law, any firearm “which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof” is not considered an ‘antique firearm’ and would be considered a ‘firearm’ for purposes of federal prohibitions.  The same is true for any firearm that incorporates the frame or receiver of a firearm such as a Remington 870 with a muzzle loading barrel or a Thompson Contender.

But even if the black powder firearm in question does not meet the definition of ‘firearm’ for purposes of applying federal prohibitions, we still have state law to consider.

In Virginia, the definition of ‘firearm’ is contained in a number of statues, including those governing when a background check needs to be performed.  But interestingly enough, it does not provide a definition in § 18.2-308.2 which governs possession by those convicted of a felony.  This leaves us looking to case law to determine the answer.

People will often erroneously cite to the 1997 case of Miller v. Commonwealth 492 S.E.2d 482 as proof that black powder firearms are not denied to convicted felons but this is an incorrect reading of the holding.  In Miller, the defendant did initially raise the issue of what constitutes a ‘firearm’ for purposes of § 18.2-308.2 but later dropped that issue, and the court ultimately overturned his conviction based upon a due process argument.

So we must look to other cases for answers.  In 1993, the court said in Jones v. Commonwealth (429 S.E.2d 615) that:

Code § 18.2-308.2 prohibits a felon from possessing a device that has the actual capacity to do serious harm because of its ability to expel a projectile by the power of an explosion, and it is not concerned with the use or display of a device that may [merely] have the appearance of a firearm.

This holding was followed in 1998 in Gregory v. Commonwealth (504 S.E.2d 886) and again in 2000 in Williams v. Commonwealth (537 S.E.2d 21).

The currently controlling case is from 2001.  In Armstrong v. Commonwealth (549 S.E.2d 641) the court made it very clear:

“[i]n a prosecution under Code § 18.2-308.2, once the Commonwealth proves the accused is a convicted felon who possessed an object made to ‘expel a projectile by the combustion of gunpowder or other explosive,’ then it has proven all the necessary elements of the crime based on the plain language of the statute.”

So … the answer is “No!  A convicted felon may not possess black powder firearms, even those that match the definition of antique firearms under Virginia law, such that they are sold without a background check.”

If you are a convicted felon who wishes to regain his or her right to possess firearms then I will be glad to discuss representing you in petitioning the court for restoration of your rights.

Posted in Criminal Law, Federal Law, Gun Rights Restoration, Purchasing Firearms, Virginia Law | Comments Off on The old wives’ tale about black powder firearms and felons

Are folding stocks legal in Virginia?

Posted on March 2, 2016 by John Pierce

Folding_StockEvery so often I get an email or a phone call from someone who is convinced that folding stocks are illegal in Virginia.

Just to be clear … these people are wrong. Folding stocks are certainly legal in Virginia!

So why does this rumor persist?  I suspect it is because there are a few statutes which specifically do reference “folding stock” in defining certain prohibited conduct.

We will start with § 18.2-308.7 of the Code of Virginia which prohibits the possession of so-called “assault weapons” by “any person under 18 years of age.”

In this code section, they define an “assault weapon” based upon a number of possible physical characteristics, one of which is “any semi-automatic centerfire rifle or pistol which expels single or multiple projectiles by action of an explosion of a combustible material and is equipped at the time of the offense with … a folding stock.”

However, this prohibition only applies to those under 18, has numerous other exceptions, and does not, as a general proposition, make folding stocks illegal.

We next turn to § 18.2-287.4 of the Code of Virginia which prohibits the carry of certain loaded firearms, by non-permit holders, in certain jurisdictions.

“It shall be unlawful for any person to carry a loaded (a) semi-automatic center-fire rifle or pistol that expels single or multiple projectiles by action of an explosion of a combustible material and is equipped at the time of the offense with a magazine that will hold more than 20 rounds of ammunition or designed by the manufacturer to accommodate a silencer or equipped with a folding stock or (b) shotgun with a magazine that will hold more than seven rounds of the longest ammunition for which it is chambered on or about his person on any public street, road, alley, sidewalk, public right-of-way, or in any public park or any other place of whatever nature that is open to the public in the Cities of Alexandria, Chesapeake, Fairfax, Falls Church, Newport News, Norfolk, Richmond, or Virginia Beach or in the Counties of Arlington, Fairfax, Henrico, Loudoun, or Prince William.”

This code section has caused a great deal of confusion over the years.  However, it is extremely limited in its scope, only applies to carry of a loaded firearm (not purchase or ownership), does not apply to permit holders, and does not, as a general proposition, make folding stocks illegal.

Finally we look at § 18.2-308.8 which prohibits ownership of “Striker 12 Streetsweepers.” It further extends this prohibition to “any semi-automatic folding stock shotgun of like kind with a spring tension drum magazine capable of holding twelve shotgun shells.”

Again, you have to read all of the elements of the prohibition.  It does not generally prohibit folding stocks on shotguns but only applies to those that:

a)  Are semi-auto;

b)  Have a spring-tension magazine; and

c)  The magazine is capable of holding twelve shotgun shells.

At the risk of repeating myself, this statute only prohibits a single specific type of firearm, and does not, as a general proposition, make folding stocks illegal.

Posted in Criminal Law, Virginia Concealed Handgun Permit, Virginia Law | Comments Off on Are folding stocks legal in Virginia?