New Gun Trust Rules – 41F

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As many of you are aware, there are new procedures for submitting Form 1 and Form 4 applications as of July 15, 2016. Now that the dust settled we can discuss exactly what those new procedures are for our gun trust clients. I cannot speak for trusts drafted by other law firms so this post relates to our gun trusts here at NFALawyers.com.

There is a new term of art called “responsible persons”. This term is how the ATF complicates the process to obtain NFA weapons. Responsible persons must now submit fingerprints and pictures for gun trust applicants. The ATF defines responsible persons as:

[A]ny 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. 27 C.F.R. 479.11.

That is quite a lengthy definition. What does it mean? To put it simply, the following are responsible persons in our gun trust:

  • Settlor – The person who created the trust
  • Trustees – Think of trustees as managers
  • Co-Trustees – Think of co-trustees as co-managers

Therefore, anyone listed as a Settlor, Trustee, or Co-Trustee must submit fingerprints and pictures when applying for an NFA weapon. Beneficiaries do not have to submit fingerprints unless they are also a Trustee or Co-Trustee.

Is there still a benefit to using a gun trust rather than applying as an individual? Absolutely. If you apply as an individual, only you may lawfully possess the NFA weapon. If you leave the weapon in your truck and your wife takes the truck to the grocery store she is in possession of a NFA weapon that is not registered to her. She would be committing a felony. Your family and friends cannot possess the NFA weapon if you applied as an individual.

When you get older you may need to go into assisted living or you may not have the mental faculties to possess NFA weapons. Without a gun trust your family will be in a position of unlawfully taking possession of the weapons unless you have a properly drafted power of attorney and last will and testament.

Additionally, with our gun trust package we provide detailed instructions on how to buy, sell, or make all types of NFA weapons. You will receive sample forms. We also send amendments so you may change your co-trustees, beneficiaries, or your address at any time. Feel free to call us with any questions if you are interested in a gun trust.

41F Update For All NFA Lawyers Clients

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Since July 13, 2016, the ATF requires fingerprints, pictures, and a law enforcement notification for all NFA applications. Only you, the creator (settlor) of the trust, must comply with these requirements if you follow the instructions below. The amendment and instructions below apply only to trusts drafted by NFA Lawyers, LLC.

– Download and complete this amendment: 41F Amendment. Sign and Date it. Place it as the last page of the trust.

– Get fingerprinted at your local gun shop or detention center. You will need 2 fingerprint cards.

– Obtain passport pictures from your local gun shop or drug store. You will need two passport-sized photos.

– Take the following to your dealer when you purchase an NFA weapon:

1) A copy of your entire signed and notarized Gun Trust with the Assignment of Property (to be filled out with the serial number of the weapon you are purchasing at the dealer)
2) A copy of the 41F amendment you completed, placed at the back of the trust
3) Two Fingerprint Cards
4) Two Passport-sized Photos

– Your dealer will help you fill out any forms. Most dealers also mail any forms for you.

Once you have your approved tax stamp in hand, you can shred this amendment and your co-trustees are back on your trust and may possess all NFA weapons in the trust.

If submitting a Form 1 or Form 4 without a dealer, you must mail all of the above requirements to the ATF. A Form 5320.23 (it will say CLEO copy on the bottom) with your photo attached and a copy of the Form 1 or Form 4 (it will say CLEO copy on the bottom) must also be mailed to your local chief law enforcement officer (CLEO) along with your photo. This person is your local sheriff or constable. Regular mail is perfectly acceptable.

checking account for gun trust

The myth of bank accounts for gun trusts

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It is a common misconception that you need a bank account for a gun trust. This cannot be further from the truth. In fact, I highly recommend against setting up a bank account for your gun trust. Then, why do we hear so many people speak about bank accounts?

Approximately 10 years ago, when gun trusts first started taking off, some attorneys were under the impression that bank accounts were necessary. Their estate planning trust clients had bank accounts, so why not gun trust clients? It made sense.

The industry was just beginning to learn how to set up gun trusts. Attorneys had to start somewhere. Their thought process was to cover all of the unknowns. A bank account was an unknown, so most attorneys instructed clients to obtain a bank account.

Nowadays, the vast majority of attorneys know bank accounts are not required for gun trusts. The ATF does not care if the trust has a bank account. The ATF does not care who purchased the NFA weapon. Paying for the NFA weapon with trust funds does not protect you against liability. Therefore, there is no benefit to opening a bank account in the name of your gun trust.

The downsides to opening a bank account are: you must obtain a tax identification number, spend an hour or more at a bank opening the account, make an opening deposit, maintain a minimum balance, pay monthly account fees, file yearly tax returns, and buy checks. Save yourself the hassle. Buy your NFA weapons with personal funds.
 

– /s/Dean Phillips

Should you put all of your firearms in a gun trust?

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It is a great idea to put all of your firearms into a gun trust, not just NFA weapons. The reasons being as follows. First, trust property does not go through probate court.
What does this mean?

Whenever you pass away, whether with or without a will, your estate must be probated. This means an executor accumulates your assets, pays off any liabilities or debt, and disburses the remainder to your beneficiaries. Your county probate court manages this process.

Any firearms not in your gun trust goes through the probate process. The firearms may therefore become public record. Furthermore, it is easier to challenge the distribution of probate property than it is to challenge property in a trust. A NFAlawyers gun trust specifically defines to whom each and every firearm goes to upon your death. There is nearly no way to attack a trust with such specificity.

Secondly, a gun trust is an excellent estate planning tool. A NFAlawyers trust allows you to specifically devise every firearm, should you choose to do so. For example: You can give your 45 suppressor to your son, your SIG P226 to your daughter, your Les Baer Concept II to your wife, and so on.

Most gun trusts do not provide such flexibility. A gun trust without such a provision might lead to all of your beneficiaries fighting over trust property. It is further unwise to list firearms in your will. You do not have to pay an attorney $1,500 to draft a will including all of your firearms. Even if you did, your firearm collection is fluid. You would have to pay the attorney to constantly make revisions. These issues are not a concern with a NFAlawyers trust.

 

– /s/Dean Phillips

Do I have to engrave the short barrel rifle or suppressor I made?

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Do I have to engrave the short barrel rifle or suppressor I made?

Gun forums are rife with debate on whether you must engrave your trust name, city, and state on a NFA weapon you make. Some non-lawyer industry professionals are even under the impression that you do not need to engrave. This article is a final answer to the above question.

You must engrave any NFA weapon you make. Put another way, you must engrave anything you Form 1. A Form 1 is the application to make and register a firearm. This is the Form you submit to make a suppressor, short barrel rifle, or short barrel shotgun.

The Code of Federal Regulations defines the term make to “include manufacturing (other than by one qualified to engage in such business under this part), putting together, altering, any combination of these, or otherwise producing a firearm.” 27 C.F.R. 479.11. “You, as a manufacturer, importer, or maker of a firearm, must legibly identify the firearm as follows:

By engraving, casting, stamping (impressing), or otherwise conspicuously placing or causing to be engraved, cast, stamped (impressed), or placed on the frame, receiver, or barrel thereof certain additional information. This information must be placed in a manner not susceptible of being readily obliterated, altered or removed. For firearms manufactured, imported, or made on and after January 30, 2002, the engraving, casting, or stamping (impressing) of this information must be to a minimum depth of .003 inch. The additional information includes:

  • (i) The model, if such designation has been made;
  • (ii) The caliber or gauge;
  • (iii) Your name (or recognized abbreviation) and also, when applicable, the name of the foreign manufacturer or maker;
  • (iv) In the case of a domestically made firearm, the city and State (or recognized abbreviation thereof) where you as the manufacturer maintain your place of business, or where you, as the maker, made the firearm…      27 C.F.R. 479.102(a)(2).

The ATF further clarified its position on engraving in ATF Rule 2013-3, dated July 10, 2013. This Rule states, “The manufacturer, importer, or maker must legibly and conspicuously place on the frame, receiver, barrel, or pistol slide (if applicable) his/her own name (or recognized abbreviation) and location (city and State, or recognized abbreviation of the State)…

Not only is the law crystal clear on this matter, but the penalty for noncompliance is harsh. “Any person who violates or fails to comply with any provisions of this chapter shall, upon conviction, be fined not more than $10,000, or be imprisoned not more than ten years, or both.” 26 U.S.C. 5871.

I cannot stress enough that you must engrave your trust name, city, and state on any NFA weapon you make. It is the law.

– /s/Dean Phillips

ATF 41P Update

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ATF 41P Update

As most of you are aware, the ATF released a final ruling on 41P January 4, 2016. This final regulation is called 41F. The P stood for proposed, F for final.

The implementation date for 41F is July 13, 2016. That means any applications for NFA weapons submitted July 12 are not subject to the 41F requirements. I discuss these requirements in my January 5, 2016 blog post. Here they are again:

  • Fingerprints
  • Picture
  • Notify your CLEO (chief law enforcement officer) of your NFA application

How 41P effects gun trusts

What concerns most of us is the questions of, how does this affect gun trusts? The answer is simple if I drafted your gun trust. Below is the process with my trust to apply for NFA weapons once 41F is in effect.

  • Fill out a 41F amendment
  • Get two fingerprint cards rolled and two 2×2 pictures taken
  • Notify your CLEO (chief law enforcement officer) of your NFA application
  • Mail in your application, trust, amendment, fingerprint cards, and pictures

If you follow this process, you will not have to submit any documentation for co-trustees listed in your trust. This is because you removed all co-trustees from your trust by filling out an amendment.

Now, how do you add the co-trustees back onto your trust? Simply shred the 41F  amendment once you have your approved tax stamp in hand, and all of your co-trustees are right back on the trust. The ATF even requests that you do not notify them of amendments after your application. They do not want the extra paperwork.

/s/ H. Dean Phillips

41P Obama administration and the ATF

Final Ruling ATF 41P

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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.41P and Gun trust

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:

  • Fingerprints
  • Picture
  • 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;

AND,

  • 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.

Sincerely,

/s/ H. Dean Phillips

How do you execute a gun trust

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How do you execute your gun trust?

We have a lot of clients ask, “How do I initiate my gun trust after receiving it from you?” In other words, how do I put the trust into effect? This procedure is called executing the trust. A gun trust becomes valid only after it is properly executed.

In order to execute your NFA Lawyers gun trust, you must perform the following steps:

  • 1. Print out the entire trust you received from us by email
  • 2. Take the trust to a notary. Notaries are persons authorized by law to take oaths. You may find notaries at a local UPS Store, FedEx Kinkos, bank, or courthouse. Many offices have a secretary on staff that is a notary.
  • 3. You and two witnesses sign the gun trust in front of the notary. The two witnesses may be any two persons the age of majority, who are not beneficiaries of the trust. For example, witnesses may be two friends or two complete strangers, such as two people at the UPS Store.

Co-trustees and beneficiaries do not need to sign your gun trust.

4. Your gun trust is now valid, similar to a contract or a will. You do not need to register the trust. NFA Lawyers does not need a copy of your executed trust. Simply store your trust in a safe place and make copies.

Silent Shooting,
Dean Phillips

How can I purchase a suppressor?

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Purchasing a suppressor can be as easy as purchasing a new firearm.Suppresor The main drawbacks are paperwork and wait time. Many people are under the impression that suppressors are illegal to own. However, this could not be further from the truth. Generally the wait time varies, but it is running about 8-10 months currently.

Is it legal to own a suppressor?

Suppressors are currently regulated by the ATF under the National Firearms Act of 1934
In order to purchase a suppressor you may have to meet the requirements listed below

  • Be a resident of the United States
  • You can legally purchase a firearm
  • You must be at least 21 years old
  • Pay a Transfer tax of 200.00
  • Keep the suppressor in a state where it is lawful to possess suppressors

If you live in these states you can purchase a suppressor*

Alabama
Alaska
Arizona
Arkansas
Colorado
Connecticut
Florida
Georgia
Idaho
Indiana
Kansas
Kentucky
Louisiana
Maine
Maryland
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Mexico
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming

*laws change, check the laws in your individual state

Some benefits of using a suppressor

No more complaints of noise

Shooting a firearm can obviously be loud. Your neighbors probably do not want to hear you shooting targets all day. Suppressors are a good option to reduce noise pollution. Furthermore, neighbors trying to sleep in may not appreciate a hunter’s daybreak shot fired from a 300 Win Mag.

Hearing

Most suppressors make the firearm you shoot “hearing safe”. A lot of firearms do not require hearing protection while shooting suppressed. In that case, you do not have to keep sweaty ear protection on your head on a hot day.

The process of buying a suppressor

If you purchase your suppressor with a trust
  • Purchase a suppressor from your FFL/SOT (This is a dealer licensed to sell suppressors)
  • Give the dealer a copy of your trust, 2 sets of fingerprints and 2 passport photos of yourself. You can choose to remove your co-trustees before submission of the paperwork or include them and submit their Form 23s, photos, and pictures. See your trust packet for a full set of instructions. Most dealers out your Form 4 and Form 23 paperwork and mail it in for you
  • Give the dealer a $200 check made out to the ATF for the tax. A personal check is recommended, although credit card payment is possible
  • Wait for the ATF to send an approved tax stamp to your dealer
  • Go pick up your suppressor

As you can see, purchasing a suppressor is not complicated. A Gun Trust offers a variety of advantages over individual ownership when dealing with purchase and use of suppressors and short barrel rifles (SBR).

  • Other individuals can posses the NFA weapon, provided that you list them as a co-trustee, they are at least 18 years old and lawfully able to possess firearms
  • NFA weapons may be temporarily left with co-trustees if you move to a state where NFA weapons are not legal
  • You can pass on NFA weapons to co-trustees when your health begins to fail
  • Any property in your trust does not go through probate court upon your death. This prevents your firearms and NFA weapons from becoming public record

Our estimated turnaround time for a gun trust package is next business day. If you are interested in a gun trust, feel free to contact us. Our attorney, Dean Phillips, would be happy to answer any questions you may have.