NFA Gun Trust Lawyer Blog
How Does Final Rule 41F Change Current NFA Regulations?
The final rule affects the NFA regulations by:
• defining the term “responsible person,” as used in reference to a trust, partnership, association, company, or corporation;
• requiring responsible persons of such trusts or legal entities to complete ATF form 5320.23, National Firearms Act Responsible Person Questionnaire and to submit photographs and fingerprints when the trust or legal entity files an application to make an NFA firearm or is listed as the transferee on an application to transfer an NFA firearm;
• requiring that a copy of all applications to make or transfer a firearm, and the specified form for responsible persons (5320.23), be forwarded to the chief law enforcement officer (CLEO) of the locality in which the applicant/transferee or responsible person resides; and
• eliminating the requirement for certification signed by the CLEO.
• In addition, the final rule adds a new section to ATF’s regulations to address the possession and transfer of firearms registered to a decedent.
Who is a 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 polices 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 of a trust or legal entity include:
• Settlors/Grantors
• Trustees
• Partners
• Members
• Officers
• Board members
• Owners
• Beneficiaries – if said beneficiary has the capability to exercise any of the powers or authorities enumerated above.
In our trusts, the responsible person is the Settlor/Grantor as well as any trustees who have power to possess or manage. Successor trustees or Beneficiaries and former trustees are not responsible persons.
What Do NFA Trust or Legal Entity Applicants Affected by the Change Need to Know?
If you are:
• applying as a trust or legal entity to make and register an NFA firearm on a Form 1, or
• receiving an NFA firearm in the name of a trust or other legal entity as the transferee on a Form 4, or Form 5,
the following information is applicable to your applications:
• all responsible persons named in the trust or legal entity are required to undergo a background check.
• all responsible persons must complete the Form 5320.23 with photo attached and provide two FD-258 fingerprint cards in order to initiate the required background check. Fingerprint cards may be ordered from the ATF Distribution Center through the online Distribution Center Order Form, or by calling (703) 870-7525 or (703) 870-7528.
• Chief Law Enforcement Officer (CLEO) certification has been replaced with CLEO notification. The applicant on the Form 1 and the transferee on the Forms 4 and 5 shall forward a completed copy of the application to the chief law enforcement officer of the locality in which the applicant or transferee is located. In addition, all responsible persons must also submit a completed copy of Form 5320.23, to the chief law enforcement officer of the locality in which the responsible person resides.
• after July 12, 2016, all applications to make or transfer NFA firearms must be submitted on the new Form 1, Form 4 or Form 5 and a Form 5320.23 must be completed by each responsible person of a trust or legal entity.
• after July 12, 2016, CLEO certification is no longer required but applicants must send a copy of the application to make or transfer NFA firearms to their chief law enforcement officer notifying them of the application.
• all applications post marked prior to the effective date of July 13, 2016 will be processed according to the current regulations.
• all applications post marked on or after the effective date of July 13, 2016 will be processed according to the new regulations set forth by 41F.
Order Forms and Fingerprint Cards
All previous editions of the forms are obsolete and will not be accepted.
ATF Form 5320.23 – National Firearms Act Responsible Person Questionnaire
ATF Form 5320.1 – Form 1 – Application to Make and Register a Firearm
ATF Form 5320.4 – Form 4 – Application for Tax Paid Transfer and Registration of Firearm
ATF Form 5320.5 – Form 5 – Application for Tax Exempt Transfer and Registration of Firearm
Please direct 41F related questions to 41F@atf.gov
ALL APPLICATIONS MUST BE MAILED TO THE ADDRESS BELOW:
Mailing Address
NFA Branch
P.O. Box 530298
Atlanta, GA 30353-0298
Phone: (304) 616-4500
Fax: (304) 616-4501
WHAT NEEDS TO BE SENT TO YOUR CLEO
Based on the FAQ, it appears that legal entities, such as trusts will need to submit a copy of the Form 1, Form 4. or Form 5 to the CLEO for notification. In addition to the responsible persons submitting the responsible person questionnaire Form 23.
Link to ATF FAQ page