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“John represented me at my hearing in Fairfax County Circuit Court for my Petition for Restoration of Firearms Rights. My case was a bit complex and it incorporated some new legislation that John was very educated on. The legislation was so new that the Commonwealth’s Attorney and the Judge did not have any knowledge of it. John’s actions in the courtroom to bring the new legislation to the attention of the court were astonishing and brilliant; even bringing a smile to the Judge and pat on the back from a fellow attorney after the hearing.
John’s flat rate pricing for representation is amazingly affordable. He is true to his word, communicates through out the entire process and works diligently to represent you. I highly recommend John Pierce.” - Shawn
Outstanding Service
“I contacted John via email regarding trust and estate work that I needed and questions that I had. He called me that same day, walked me through the process, took adequate time and was very patient in responding to my questions. He is very down to earth and professional. I was astounded as I found he was on travel, yet he took the time to personally contact me. He was very responsive in following up with the documents that I needed. I am extremely pleased and appreciative of the time he took with me and his outstanding level of service. I've worked with a number of attorneys in my profession and John exceeds the standards that I am accustomed to. I highly recommend him.” - Ron
Documenting the date you assigned your arm brace pistol to your trust
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.
If you do not have Excel and need a PDF version to print and hand-enter the items then that may be downloaded here
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.
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
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The arm brace rule (2021R-08F) will be published January 31, 2023, so get those arm-braced equipped pistols in your trust today!
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.
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
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The arm brace rule 2021R-08F has still not been published in the Federal Register
UPDATE: The rule is scheduled to be published on January 31, 2023.
As of today the arm brace rule (2021R-08F) has NOT been published in the Federal Register.
In addition, it is not currently (as of the time I am writing this) in the Public Inspection Issue. It should be published there at least one day prior to being published in the Federal Register and becoming effective.
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. See my post here for more details about putting the currently non-NFA item into your trust now.
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
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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
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