Trust names must be exact when completing ATF forms

Posted on January 23, 2015 by John Pierce

ImportantA flustered client called me earlier today from the parking lot of his local gun dealer / range with a rather startling question.

He wanted to know whether it was acceptable to change the name of his trust on a Form 4 from ‘Example Arms Trust‘, which is the actual name on the instrument to ‘Example Revocable Trust‘.

When I assured him that it was definitely not acceptable to do so, he explained that the manager of the gun store had just done that very thing on the Form 4s for the suppressor he was attempting to purchase.

Apparently, when he questioned her, she said that it “was fine and that they do it all the time.”  I informed him that if they truly did it “all the time” then those other applicants were in for a rude surprise.  Namely a letter that looks like this:

Must_Match

After our call, he returned to the store and asked that it be changed whereupon the manager became angry and things went downhill from there.  Ultimately though, no incorrect Form 4s were filed.

But what would have happened if the Form 4s had been sent in with the name being incorrect?

The most likely result would have been a denial letter such as the one shown above.

I have to say that I am absolutely amazed that a gun store manager would not understand the need for exactitude. After all, this is the ATF we are talking about.

Let me state their position for you clearly:

The name of the trust is not negotiable.

It is a legal name and must match exactly between the instrument and what is placed on the Form 4 (or any other ATF form).  The slightest deviation is a problem.  A friend of mine who is an FFL has had Form 4s rejected when the word ‘The‘ was erroneously added in front of the name of the trust.

But a denial is the best possible result.  If the ATF somehow erred and approved the Form 4 then you would have an item registered in the NFRTR under the name of a trust that you are not affiliated with.  This could have serious legal consequences for the owner.

So how do you protect yourself from similar issues?

1)  If your dealer is assisting you with the completion of your Form 4, make sure that the name entered on the form matches your trust name exactly.

2)  If you receive a denial from the ATF because the name does not match, contact me and I will assist you in submitting a corrected application.

3)  If you receive an approved tax stamp in a name different than that of your trust, contact me and I will assist you in either renaming your existing trust (if you have no other items registered in the original name of the trust) or in drafting a new trust to match the incorrect name.

Remember … you are ultimately the one attesting to the validity of the information you provide on the Form 4.

Posted in ATF, BATFE, FFL Issues, Form 4, NFA Transfers, NFA Trusts | Comments Off on Trust names must be exact when completing ATF forms

Sig Sauer issues a press release hinting at legal action over stabilizing brace issue

Posted on January 21, 2015 by John Pierce

Arbitrary_And_CapriciousUpdate:  For the latest news on the stabilizing brace issue, see my March 21, 2017 update.

…

I received a call today from a client who had just read my article about the ATF’s open letter concerning the stabilizing brace issue.  He was coming to the issue late but was incensed that the ATF was reversing their previous position.

He asked me if the NFA community was “going to take this lying down.”  I told him I expected that several manufacturers were exploring their legal options.

I spent a few minutes trying to explain the basics of administrative law and how an agency ruling can be challenged as ‘arbitrary and capricious’ but went on to caution that the courts will grant significant deference to agency action.

It turns out that Sig Sauer at least is definitely considering such a challenge.  They released the following press release this afternoon.

NEWINGTON, N.H. (January 21, 2015)—SIG SAUER, Inc., has issued the following statement about the recent opinion by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in regard to the SB15 and SBX pistol stabilizing braces.

“As reaffirmed in an Open Letter by ATF’s Firearms and Ammunition Technology Division dated January 16, 2015, the Pistol Stabilizing Brace (SB15 and SBX) is legal to own, legal to purchase, and legal to install on a pistol. SIG SAUER® believes that the PSB improves the single-handed shooting performance of buffer tube equipped pistols, and offers the product both as an accessory and pre-installed on a number of pistols.

“The Open Letter goes further to rescind a previous private letter regarding the ‘intent’ of the user of the pistol stabilizing brace. In the letter of January 16, 2015, ATF opines that a person’s actual use of the product as a shoulder stock can change the legal classification of the product. However, the Open Letter explicitly states: “ATF hereby confirms that if used as designed—to assist shooters in stabilizing a handgun while shooting with a single hand—the device is not considered a shoulder stock and therefore may be attached to a handgun without making a NFA firearm.”

“We question ATF’s reversal in position that the classification of the brace may be altered by its use. We are reviewing the legal precedents and justification for this position, and will address our concerns with ATF in the near future.”

“We will vigorously defend the classification of all of our products and our consumers’ right to use them in accordance with the law. If we find that the open letter opinion is outside the scope of the law, we will seek further review.”

Posted in Administrative Law, AR Pistols, ATF, ATF Guidance Letters, BATFE, SBR, Stabilizing Brace | Comments Off on Sig Sauer issues a press release hinting at legal action over stabilizing brace issue

We have an eForms update

Posted on January 21, 2015 by John Pierce

Expect_DelaysFor some time now the ATF has been hinting that they would have an important update concerning eForms 3 and 4 at the 2015 Shot Show.

Many optimists had hoped that the ATF might be ready to announce that these eForms are ready to return to service.

I have been telling clients that this was hoping for too much and that they might expect eForms 3 and 4 to return to service by the 2nd quarter of the year.

It turns out that even this was too optimistic.  In the just-released ‘State of eForms’ newsletter (embedded in full below), the ATF reveals that there has been some progress but not nearly enough to herald an impending return to service.  The key portion of the newsletter states:

While eForms 3 and 4 have not yet been restored to service, there has been progress. ATF has engaged a new vendor to create a more robust platform for the processing of the eForms 3 and 4. The new platform will be designed to eliminate the issues that caused the removal of the eForms 3 and 4 from service.

The new eForms will also provide enhanced functionality such as batch processing and possibly some automated approval functionality for certain forms. The vendor has recently been cleared and has already started to work with ATF in engaging the industry for system requirements on certain processes. Once the requirements have been finalized, we will begin the design and review of the new eForms platform. We hope to have eForms 3 and 4 returned to service by late 2015.

So … it will be late 2015 at the earliest.  And if I were a betting man, I would wager that it will be 2016 before we see a full return of eForms 3 and 4.  Thankfully, the added staff continues to reduce the backlog of paper applications and cut down on wait times.

Posted in ATF, BATFE, eForms, Form 3, Form 4, NFA Transfers, NFA Trusts, Processing Times | Comments Off on We have an eForms update

The ATF has issued an open letter on the stabilizing brace issue

Posted on January 16, 2015 by John Pierce

Pistol_Brace_ShoulderedUpdate:  The ATF has reversed their position once again.  See my March 21, 2017 update for the latest news.

………

Based upon a flurry of questions from friends and clients, on December 28th of last year I wrote an article entitled “Has the ATF changed their mind about the Sig brace?”

In that article I pointed out that the ATF is seemingly taking the position that “using the brace as a stock would constitute a ‘redesign’ or ‘remaking’ of a weapon ‘designed to be fired from the should’” and therefore subject to the registration and taxation requirements of the NFA.

Several people contacted me to express their opinion that I was reading too much into the recent letters from the ATF.

It appears however that I was correct in my interpretation of which way the wind was blowing.  Today the ATF has released an open letter to the NFA community in which they ‘clarify’ their position on the use of stabilizing braces.

The entire letter is embedded below but the key messages from the letter are:

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.”

Despite the absurdity of a position that misuse of an item constitutes a remaking of that item, it appears that the age of the ‘poor man’s SBR’ has come to an end.

 

Posted in AR Pistols, ATF, ATF Guidance Letters, BATFE, Firearms Technology Branch, NFA Trusts, SBR, Short Barreled Rifles | Comments Off on The ATF has issued an open letter on the stabilizing brace issue

Who can ask to see my tax stamp?

Posted on January 14, 2015 by John Pierce

Tax_StampI tell all of my clients to keep a copy of both their approved tax stamps and their NFA trust on them at all times they are in possession of their NFA items.  

But if you follow that advice to its logical conclusion it assumes that you may have to show it to someone at some point.

So … who exactly does have the right to ask to see your approved tax stamp?

Let’s start with the obvious.  What about ATF agents?

Well … the Form 1 and Form 4 both give us a big clue.  On the back of both forms it says “This approved application is the registrant’s proof of registration and it shall be made available to any ATF officer upon request.”  

The authority for this assertion is 26 U.S.C. § 5841(e) which states that you are required to “retain proof of registration which shall be made available to the [ATF acting in their official capacity] upon request.”

Therefore, any ATF agent has the authority to ask to see your approved tax stamp.

But what about local and state law enforcement officers?

Well … let me start by noting that my practice is limited to Virginia and this advice is intentionally limited to Virginia law.  Having said that, under Virginia law, most NFA items are banned but have an exception for items possession in conformity with federal law.

For example, short-barreled rifles and short-barreled shotguns are both generally banned under § 18.2-300.

§ 18.2-300. Possession or use of “sawed-off” shotgun or rifle.

A. Possession or use of a “sawed-off” shotgun or “sawed-off” rifle in the perpetration or attempted perpetration of a crime of violence is a Class 2 felony.

B. Possession or use of a “sawed-off” shotgun or “sawed-off” rifle for any other purpose, except as permitted by this article and official use by those persons permitted possession by § 18.2-303, is a Class 4 felony.

And the exception for these items possessed in conformity with federal law is contained in § 18.2-303.1.

§ 18.2-303.1. What article does not prohibit.

Nothing contained in this article shall prohibit or interfere with the possession of a “sawed-off” shotgun or “sawed-off” rifle for scientific purposes, the possession of a “sawed-off” shotgun or “sawed-off” rifle possessed in compliance with federal law or the possession of a “sawed-off” shotgun or “sawed-off” rifle not usable as a firing weapon and possessed as a curiosity, ornament, or keepsake.

Therefore, a local or state law enforcement officer would have the right to ask to see the approved tax stamp and failure to provide it would be evidence of a violation of state law.

Is there anyone else?  What about range safety officers at a range?

There are certainly numerous anecdotes on the internet about RSOs asking to see the tax stamp for an NFA item that is being fired at a commercial range.

In this case however, the answer is ‘No’.  They do not have a legal right to see your tax stamp.  But … as a private property actor, what they do have is the right to ask you to leave if they ask and you refuse.

Posted in Federal Law, Machine Guns, NFA Trusts, SBR, Short Barreled Rifles, Short Barreled Shotguns, Tax Stamp, Virginia Law | Comments Off on Who can ask to see my tax stamp?