The Law Office of John Pierce, Esq.

As of January 31, 2023, the arm brace rule (2021R-08F) has been published in the Federal Register. and therefore, has the force and effect of law (unless overturned in the future by a legal challenge).

If you own an arm brace equipped pistol (shotguns and non-pistols are not covered under this rule) which is subject to the rule (see the ATF example document here), you have some decisions to make.

The first decision is whether or not to comply. There are numerous people online who are stating that they simply will not comply.

As an attorney, I cannot advise you to break or ignore the law.  My advice to my clients is to follow one of the compliance options the ATF has laid out in their FAQ while awaiting the results of the multiple legal challenges that are being mounted against the rule.

As laid out above, the options are:

1) Register the arm brace equipped pistol during the 120 day amnesty period to get a free SBR tax stamp.

2) Remove the arm brace from the pistol and either destroy it or remove it from the premises completely (the details of constructive possession are beyond the scope of this article).  This would remove the pistol from the purview of the rule since it is no longer equipped with an arm-brace.

3) Add a 16+ inch barrel to the pistol thereby removing it from the provisions of the NFA regardless of whether it has an arm brace on it.

The other two options, to surrender or destroy the pistol itself, are beyond stupid and deserve no more consideration.

If you have one of my NFA Trusts and wish to use the trust to apply for the free amnesty tax stamp, you need to document the fact that you assigned the arm brace equipped pistol to your trust prior to the date the rule was published.  This documentation is then uploaded during the eForm1 process.

The ATF has taken the position that, in order to register an SBR under the free tax stamp provision of the arm brace rule (2021R-08F), the pistol must  have already been assigned to, or owned by, the trust prior to the date of publication of the rule (January 31, 2023).

From the ATF FAQ …

In the eForms system, they are requesting that you upload documentation showing when the arm brace equipped pistol was assigned to your trust.

The question then becomes what evidence will they accept?  On the eForms site, they state the following:

So how does one demonstrate the date that the assets were assigned to the trust, given that different states have different legal requirements concerning assigning assets to a trust.  For example, Virginia even allows assets to be held in trust based upon mere oral assertion:

Therefore, I believe that the ATF will face significant challenges in evaluating this requested ‘evidence’.  As for my clients, I suggest using an assignment sheet to document the date you first assigned the item to your trust.

Many clients have developed their own assignment sheets but I have prepared one that I encourage you to use when you submit your eForm 1 application for your new tax stamp.

You can download my non-NFA item assignment spreadsheet to document the date you assigned your arm brace equipped pistol(s) that you may wish to SBR under this rule to your trust. 

Download (XLSX, 13KB)

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 you assigned the pistol(s) to your trust in the line at the bottom right, and sign it on the line titled “Signed By: Settlor / Trustee”

There has been a fierce debate online regarding what ‘evidence’ the ATF will require with many people who did their documentation prior to January 31, 2023 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, attesting to the fact that you assigned the pistol(s) to the trust prior to the publication of the final rule in the Federal Register would be sufficient.

If you wish for me to assist you in the filing of your eForm application, please contact me.

As of today the arm brace rule (2021R-08F) is in the Public Inspection Issue with a proposed date of publication in the Federal Register of tomorrow, January 31, 2023.

Therefore, if you intend to register an item you own that has an arm brace once the rule becomes effective it is not too late to get an NFA Trust to hold your resulting SBR.

Please note that the item MUST be placed in the trust prior to the date the final rule is published in the Federal Register in order for you to take advantage of the ‘free’ tax stamp in the name of the trust.

See my post here for more details about putting the currently non-NFA item into your trust now.