Can the ATF use information provided on an NFA application against me?

There has been quite a bit of discussion online as to whether the amnesty registration offered as part of the arm brace rule (2021R-08F) is a ‘trap’ in the legal sense.

In other words, can the information you provide on your Form 1 application be used against you in a criminal proceeding?

Perhaps there might be an issue if your application is denied due to a failure of the background check being completed in a timely manner.

Or maybe the issue is that the arm brace equipped pistol you are attempting to register has a 922(r) compliance issue now that it is being considered to be a rifle (more about this in a future article).

But back to the question at hand.  Many people have been citing 26 U.S.C. § 5848 for the proposition that the information on the application, or submitted with the application, cannot be used against you.  And those people are ‘mostly’ correct … for a given definition of ‘used against you.

Let’s look at that statute (emphasis added)…

26 U.S. Code § 5848 – Restrictive use of information

(a)General rule
No information or evidence obtained from an application, registration, or records required to be submitted or retained by a natural person in order to comply with any provision of this chapter or regulations issued thereunder, shall, except as provided in subsection (b) of this section [furnishing false information], be used, directly or indirectly, as evidence against that person in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration, or the compiling of the records containing the information or evidence.

(b)Furnishing false information
Subsection (a) of this section shall not preclude the use of any such information or evidence in a prosecution or other action under any applicable provision of law with respect to the furnishing of false information.

(Added Pub. L. 90–618, title II, § 201, Oct. 22, 1968, 82 Stat. 1232.)

Sounds pretty watertight right?  Not exactly.  The courts have ruled on this matter several times in the intervening years.  In U.S. v. Hunter,843 F. Supp. 235, 249-253 (E.D.Mich. 1994), the court ruled that, as long as the information was not used “as evidence,” but merely for purposes of initiating an investigation, there was no violation of the statute.

So, what exactly does that mean in the current context?  It means that the information provided as part of your application, including any attached schedules admitting possession of a given item, may not be introduced against you as evidence in a criminal proceeding.

However, it could form the basis for starting an investigation if there was something revealed that caused them to believe you were committing a crime other than merely possessing an otherwise legal item equipped with an arm brace during the amnesty period.  If that investigation yielded independent evidence then that evidence could be used against you.

But that is a scholarly analysis of how the courts have ruled on the protections offered by the statute, not a prediction of how the ATF will handle the arm brace amnesty issue.

While no one can predict how the ATF will act in a given situation, I do not believe that there is any intentional trap or intent to prosecute those who legitimately attempt to comply with this rule once it is published.  However, with a rule of this complexity, there is always the possibility of unintended consequences.

It will be incumbent upon those of us in the legal community to closely monitor the implementation of this rule once it is published and keep our fellow gun owners informed.

Posted in 2021R-08F, 922(r), Administrative Law, AR Pistols, Arm Brace, ATF, ATF Ruling, BATFE, Form 1, Form 4, Processing Times, SBR, Short Barreled Rifles, Stabilizing Brace, Tax Stamp | Comments Off on Can the ATF use information provided on an NFA application against me?

Debunking some persistent online myths about the arm brace rule 2021R-08F

Since the ATF announced last Friday (January 13, 2023) that the publication of the final arm brace rule (2021R-08F) was imminent, there has been a flood of online rumors regarding how the rule will be implemented and enforced.

In that time, I have been inundated with calls from clients seeking to make informed decisions about whether to register their arm brace equipped pistols and how to use their NFA trusts to do so.

During these calls, there are a number of questions that I am repeatedly asked … and there are some persistent rumors spreading with answers that do not coincide with the ATF’s published position.

I have listed a few of them below as well as the answer from the ATF FAQ.  While they are known to be a mercurial agency, I believe their own publication is the best source for determining how they are looking at the new rule.

Question 1:  Are they really letting us register brace-equipped firearms as SBRs or are they creating a new category called ‘braced pistols’?

The rule states that many firearm models equipped with arm braces meet the definition of an SBR with the arm brace attached and therefore need to be registered as such.  While an agency such as the ATF can promulgate rules that ‘clarify’ definitions from enabling statutes (in this case the NFA), they cannot add provisions to the law without congressional action.

In just the first page of the ATF FAQ (see screenshot below) they make it clear that what we are talking about is adding brace-equipped firearms to the definition of SBR.

Question 2:  If I take advantage of the free tax stamp, will I be able to remove the brace and add a normal stock once it is approved?

Yes.  Despite the internet rumors to the contrary, the ATF FAQ (see screenshot below) clearly states that once it is registered as an SBR, you may feel free to remove the brace and add a stock.

Question 3:  If I remove and destroy the brace, will the firearm itself still be considered an SBR?

If you remove and destroy the brace then the firearm no longer meets the expanded definition of an SBR.

In addition, they specifically address this question in their compliance section.

Question 4:  If I have submitted my Form 1 for my free tax stamp but haven’t received it within the 120-day amnesty period, may I still keep the brace on my firearm while waiting for my tax stamp?

Yes … provided that you have submitted your application (and have proof of your submission) during the 120-day period.

I will do future posts as I continue to work with my clients to address their concerns about this rule.

Posted in 2021R-08F, Administrative Law, AR Pistols, Arm Brace, ATF, ATF Ruling, BATFE, eForms, Form 1, NFA Trusts, Regulatory Rulemaking, SBR, Short Barreled Rifles, Stabilizing Brace | Comments Off on Debunking some persistent online myths about the arm brace rule 2021R-08F

Make sure to assign your arm brace pistol to your trust prior to the publication of 2021R-08F!

The ATF has taken the position that, in order to register an SBR under the free tax stamp provision of this rule, the ‘host’ (e.g. pistol, lower, etc.) must already be assigned to, or owned by, the trust prior to the date of publication of the rule (expected any day now).

From the ATF FAQ

Therefore, make sure to download my non-NFA item assignment spreadsheet

Download (XLSX, 13KB)

to document the assignment of any ‘host’ firearms that you may wish to SBR under this rule to your trust prior to that date!

If you do not have Excel and need a PDF version to print and hand-enter the items then that may be downloaded here

Download (PDF, 49KB)

Regardless of which version you use, make sure you 1) put the name of the trust in the header where there is a blank line; 2) enter the date in the line at the bottom right, and sign it on the line titled “Signed By: Settlor and Trustee

NOTE:  I should add that I have been told that the date in the instructions on the eForms site says that the ‘host’ firearms should have been assigned to the trust prior to January 13, 2023.  However, since the rule is not properly promulgated, and therefore has no force and effect pursuant to the Administrative Procedures Act, until it is registered in the Federal Register, I believe that this is merely a ‘placeholder’ date on the site and will be updated once the rule is actually published.  If not, I believe that any denials based upon this date would be challengeable on those grounds.

There has been a fierce debate online regarding what ‘evidence’ the ATF will require with many people rushing out to have their assignment sheets notarized.  I certainly cannot guarantee how the ATF will handle this issue.  However, I can say that assignment sheets are NOT required by law to be notarized and any submission of documentation to the ATF is done under penalty of perjury.

Therefore, I personally believe that a signed and dated assignment sheet, showing that you added the host firearm prior to the publication of the final rule in the Federal Register would be sufficient.  However, I cannot guarantee how they will implement this requirement, so I highly recommend that you get the assignment sheet notarized between now and when the final rule is published in the Federal Register.

As for when you should plan on submitting your eForm (after your arm brace equipped items have been added to the trust), I suggest waiting at least a few weeks after the rule is published in the Federal Register.

This accomplishes three things:  1) It allows us to get any additional information from the ATF regarding their interpretation of certain provisions of the rule; 2) It gives any legal challenges time to work their way through the system in case there are going to be preliminary injunctions granted; and 3) Hopefully the eForms system will no longer be crashing constantly due to being overloaded with simultaneous applications.

Posted in 2021R-08F, Administrative Law, AR Pistols, Arm Brace, ATF, ATF Ruling, BATFE, eForms, Form 1, NFA Trusts, Regulatory Rulemaking, SBR, Short Barreled Rifles, Stabilizing Brace, Tax Stamp | Comments Off on Make sure to assign your arm brace pistol to your trust prior to the publication of 2021R-08F!

The ATF announced today that they plan to publish the final arm brace rule (2021R-08F) in the very near future

We have known this was a possibility for some time.  However, many of us in the industry had hoped that the very valid arguments raised during the comment period, coupled with the Bruen decision, would have caused the BATFE to pause in their headlong rush to redefine more and more firearms and accessories as subject to the National Firearms Act (NFA).

Apparently not.  Today, the ATF published the following on their website:

“On January 13, 2023, the Attorney General signed ATF final rule 2021R-08F, ‘Factoring Criteria for Firearms with Attached Stabilizing Braces,’ amending ATF’s regulations to clarify when a rifle is designed, made, and intended to be fired from the shoulder.”

Final Rule 2021R-08F, is a whopping 293 pages long but there are a number of key takeaways that I wanted to address (MAKE SURE TO READ TO THE END SINCE THE LAST POINT IS VITAL TO USING YOUR TRUST):

– They seemingly intend to apply the factors broadly and sweep in the majority of firearms that can host arm braces.  They have published an example document which you should take a moment and review.

– The rule is NOT yet effective since it has not yet been published in the Federal Register.  Given some of the other points I will discuss below, I anticipate that they will publish it as soon as Tuesday January 17 (Monday is a federal holiday).  NOTE:  It was not published on January 17, but I expect them to move on this quickly given their aggressive movement on announcing it on the 13th and pre-releasing the eForms update allowing free registration.

– They are offering a 120-day amnesty period following the publication of the final rule in the Federal Register during which firearms subject to the rule may be registered in the NFRTR.  This registration does NOT require the normal payment of $200 for the tax stamp.

– Please note that after this amnesty period, any firearms that meet the definition under the new rule will be deemed to be unregistered SBRs and will subject the owner to potential criminal prosecution.

– In support of my belief that they intend to publish this as soon as possible, they have already added an option on the eForms system to submit the Form 1 applications for firearms subject to the new rule which does not require the payment of the $200 tax stamp.

Please note that there are numerous reports of the eForms system crashing due to the heavy load.  I expect we will see significant disruptions in the system and in processing times during 2023 and beyond due to the glut in the system this will inevitably create.

IMPORTANT DETAILS FOR TRUST CLIENTS BELOW!

– Of particular importance to my trust clients, the ATF has taken the position that, in order to register an SBR under the free tax stamp provision of this rule, the ‘host’ (e.g. pistol, lower, etc.) must already be assigned to, or owned by, the trust prior to the date of publication of the rule (expected as early as Tuesday the 17th).

From the ATF FAQ

Therefore, make sure to use my non-NFA item assignment spreadsheet to document the assignment of any ‘host’ firearms that you may wish to SBR under this rule to your trust prior to that date!  Make sure you have the assignment spreadsheet dated as of the date you added the host to the trust and sign the assignment sheet attesting to that date.

NOTE:  I should add that I have been told that the date in the instructions on the eForms site says that the ‘host’ firearms should have been assigned to the trust prior to January 13, 2023.  However, since the rule is not properly promulgated, and therefore has no force and effect pursuant to the Administrative Procedures Act, until it is registered in the Federal Register, I believe that this is merely a ‘placeholder’ date on the site and will be updated once the rule is actually published.  If not, I believe that any denials based upon this date would be challengeable on those grounds.

There has been a fierce debate online regarding what ‘evidence’ the ATF will require with many people rushing out to have their assignment sheets notarized.  I certainly cannot guarantee how the ATF will handle this issue.  However, I can say that assignment sheets are NOT required by law to be notarized and any submission of documentation to the ATF is done under penalty of perjury.

Therefore, I personally believe that a signed and dated assignment sheet, showing that you added the host firearm prior to the publication of the final rule in the Federal Register would be sufficient.  However, I cannot guarantee how they will implement this requirement so if you wish to be truly cautious and have the opportunity, there would be no harm in getting the assignment sheet notarized between now and when the final rule is published in the Federal Register.

– Finally, they have published an FAQ answering many other questions about 2021R-08F which is worth reviewing.

Posted in 2021R-08F, Administrative Law, AR Pistols, Arm Brace, ATF, ATF Ruling, BATFE, eForms, Form 1, NFA Trusts, SBR, Short Barreled Rifles, Stabilizing Brace, Tax Stamp | Comments Off on The ATF announced today that they plan to publish the final arm brace rule (2021R-08F) in the very near future

Purchasing multiple handguns in Virginia

In 2020, the Democrat majority in the General Assembly enacted a ‘one handgun a month’ law.  That bill, SB69,  limited the number of handguns that a person could purchase within a 30-day-period to one.

The bill did provide a number of exceptions to this prohibition.  Most gun owners fall within the exception for those that hold a Virginia Concealed Handgun Permit (CHP).

However, those without a CHP may apply for a waiver by submitting an SP-207 Multiple Handgun Purchase Application.  Make sure to answer all questions completely and honestly.

If you are applying for a waiver, you will complete the form and then have it notarized.  Pursuant to 19VAC30-101-30, “[t]he applicant shall deliver such application in person to (i) State Police Administrative Headquarters, 7700 Midlothian Turnpike, Richmond, Virginia; (ii) a division headquarters or area office of the Department of State Police; or (iii) any local law-enforcement agency certified by the Department of State Police as its agent to receive such applications.

Pursuant to 19VAC30-101-80, once your application is approved “the Department of State Police shall issue or authorize its agent to issue to the applicant a nontransferable certificate authorizing the purchase of a specified number and type of handguns. The nontransferable certificate shall be valid for seven days from the date of issue.”

Make sure you give them correct contact information because the same regulation states that “The Department of State Police or its agent shall make one attempt to contact the applicant to notify the applicant of the issuance or denial of the certificate at a telephone number provided by the applicant at the time of delivery of the application.

Posted in Background Checks, CHP, Concealed Handgun Permit, Criminal Law, One Handgun a Month, Purchasing Firearms, Virginia Law, Virginia State Police | Comments Off on Purchasing multiple handguns in Virginia