NFA Lawyers’ Initial Review of Final Ruling ATF 41P
The BATFE and Attorney General finalized proposed regulation 41P on January 4, 2016. A link to same can be found at https://www.atf.gov/file/100896/download. As many of you are aware, this regulation impacts gun trusts. This initial review provides an overview of what those key changes are.
This ruling is 248 pages long. At the top of the ruling is the following language:
“This final rule was signed by the Attorney General on January 4, 2016. It is effective 180 days after date of publication in the Federal Register.”
If the rule was published in the Register on January 4, 2016. This means there is still no CLEO sign off, fingerprints, or picture requirement for trusts until July 1, 2016.
Let us get to the “meat and potatoes” of 41P. Of the 248 pages comprising 41P, pages 238-239 are of key importance. Below is the language impacting gun trusts:
§ 479.11 Meaning of terms.
Person. A partnership, company, association, trust, corporation, including each responsible person associated with such an entity; an estate; or an individual.
Responsible person. In the case of an unlicensed entity, including any trust, partnership, association, company (including any Limited Liability Company (LLC)), or corporation, any individual who possesses, directly or indirectly, the power or authority to direct the management and policies of the trust or entity to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on behalf of, the trust or legal entity. In the case of a trust, those persons with the power or authority to direct the management and policies of the trust include any person who has the capability to exercise such power and possesses, directly or indirectly, the power or authority under any trust instrument, or under State law, to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on behalf of, the trust. Examples of who may be considered a responsible person include settlors/grantors, trustees, partners, members, officers, directors, board members, or owners. An example of who may be excluded from this definition of responsible person is the beneficiary of a trust, if the beneficiary does not have the capability to exercise the powers or authorities enumerated in this section.
What all of this means is any responsible person in a trust must undergo the following requirements:
- No CLEO sign-off. You simply notify your CLEO.
Well, who are responsible persons in a gun trust? I will break down the two critical elements.
Responsible persons are:
- 1) Persons with the power or authority to direct the management and policies of the trust;
- 2) Have the power or authority to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for the trust.
It appears as though responsible persons are those who meet both elements. If an individual does not meet both of these elements, they are not responsible persons. Thus, the 41P requirements would not apply to that individual.
In NFA Lawyers’ trusts, co-trustees do not have any power or authority to direct the management and/or policies of the trust. Co-trustees do not meet element number one. We draft trusts this way in order to prevent co-trustees from having any control over your NFA weapons or other firearms in the trust.
Based on the face of 41P, our trusts are already 41P compliant. Co-trustees in our trust will never have to send in fingerprints, pictures, or notify their CLEO. Additionally, 41P clearly states that beneficiaries are not subject to these requirements.
As with many new regulations, there will be much litigation over these topics. The ATF may make revisions or opine further on their position, which may change the impact of 41P.
Regardless, NFA Lawyers will keep our clients apprised of any required changes to their trusts, if any. It has been our pleasure to do business with each and every one of our clients. We will do everything we can to prevent our government from infringing on our Right to Keep and Bear Arms.
/s/ H. Dean Phillips