ATF / BATFE

February 16, 2010

ATF says ATI’s Fake Suppressor is Regulated by NFA

If you purchased a GSG 5 SD model with a barrel shroud (Fake Suppressor) ATF has now determined that this is regulated by the NFA and must be replaced.

To all retail customers:

On January 2010 American Tactical Imports Inc received official notification from the Bureau of Alcohol, Tobacco, Firearms and explosives that the original barrel shroud (aka: fake suppressor) supplied with your GSG 5 SD model must be replaced. It has been determined that this shroud is regulated under the National Firearms Act. American Tactical will provide a replacement shroud at no charge for each GSG 5 SD model sold or currently in inventory.

February 4, 2010

ATF Reviewing Trusts for Legal Validity

by David M. Goldman

The ATF has recently made a decision to review Trusts for legal sufficiency. While this may slow things down for those using generic trust for NFA purchases (Quicken, Legal Zoom, Gun Store Trusts) I think its a good idea and will protect many from unknowingly violating the NFA.

We have seen several issues where the ATF is declaring trusts to be invalid that are in fact valid under various state laws. They claim they are not practicing law in those states and will not give legal advise. They suggest that you have the trust reviewed by a lawyer to tell you why it is invalid or make changes to the trust to make it valid.

If your trust was rejected by ATF we can help by reviewing and or amending the trust with our network of 75 attorneys in more than 40 states.

December 19, 2009

My lawyer says not to worry but I would like a second opinion from an NFA lawyer.

by David M. Goldman

Today I received an email from someone who was forming a trust to transfer assets from their father’s estate. There were NFA items in the father’s estate. The person’s estate planning lawyer had advised them that it was OK to transfer NFA firearms to a trust using a general assignment of personal property. A general assignment of personal property is a standard form that transfers all personal property not requiring a deed or special documentation to a trust and is commonly used with a standard revocable living trust.

Unfortunately his lawyer must not have been familiar with the NFA because no one should ever do such a thing. This would be a violation of the National Firearms Act, and subject the individual to confiscation of all firearms, 10 years in jail for each violation, and up to a $250,000 penalty for each violation.

At this time of the year, we are often short of time and rushing to take care of things before the holidays. Before making a mistake with an NFA firearm, learn about them and the additional restrictions placed upon the use, possession, transfer, and purchase of them in your state and around the country.

December 16, 2009

ATF Now wants Certification of Compliance with Trust

by David M. Goldman

NOTE The 5330.20 has been integrated into the Form 4 and Form 1 as of July 12, 2016 so this is no longer necessary.

While ATF has previously stated that a certification of compliance is not necessary for trusts, they have now changed their mind or at lease in some cases. For this reason we are now recommending that you send in the 5330.20 with your Form 4 or Form 1 application to purchase or make a firearm restricted under the NFA.
We will create a sample Form 5330.20 to review. Here is a link to download a Certification of Compliance with 18 U.S.C. 922(g)(5)(B) ATF 5330.20

August 31, 2009

Florida Man Arrested for Constructive Possession of an SBR

by David M. Goldman

NFA firearms and Constructive Possession. Some said it would never happen, but it seem that just recently Jesus Amador was arrested for possession / Constructive possession of an SBR.

Florida law does not allow individuals to possess the pieces to readily build an SBR, SBS, or Machine Gun unless permitted to do so under Federal law. While he may have been enticed by the police to take an action that he would not have taken, he eventually showed up to unknowingly sell the items to a police officer. Upon doing so 7 police officers at gun point slammed him to the ground and arrested him (as reported by Joshua Prince on his gun blog and by Mr Amador on Florida Gun Trader)

While some may say that this is a possession issue and not constructive possession, the fact is that constructive or actual possession are only ways to prove possession and as such there may be little significance between the two.

August 30, 2009

NFA Trusts: Silencer Manufacture Provides Invalid Forms to Clients for Title II Purchases

by David M. Goldman

While many dealers provide Trusts and help clients fill our Trust Documents ( a violation of law in most states), this was the first time I had run across a Manufacture of Title II firearms who was providing trusts to clients. This Trust was not being completed by the Class 3 manufacture, but was a Fill in the blank form that was supplied by a silencer manufacture. It had a place to print your name, date, pick successor trustee’s and sign. There was no place to witness ( a requirement in many states). While the trust appeared to be better than some forms we have seen, it will missing some of the schedules. The main schedule that was missing was the Schedule of Beneficiaries. It was not evident that one was necessary and as such the trusts we were reviewing did not contain them.

As we have discussed before, a beneficiary is an essential element to a trust and in most cases the failure to include a beneficiary who is different from the creator will cause a trust to be invalid.

This trust, as with many Quicken or Legal Zoom trusts failed to address the firearms and the many unique issues that arise when dealing with Firearms. If a valid trust would have been created, it could have transferred a bank account, chair, picture on the wall, or most any item without problem, but would have not been a good idea to use for a firearm.

August 13, 2009

Free NFA Trust Form for Class 3, Title II purchases.

by David M. Goldman

Free NFA Trusts from your dealer – are they worth the paper they are written on, or could you face jail time for relying on bad advise from your dealer?

Recently I was contacted by a client who’s gun dealer provides their clients a free Revocable Trust to purchase NFA items. After reviewing the Free NFA Gun Trust Form, I was shocked to discover that there was no way this trust could create a valid trust. A trust by definition must separate beneficial and legal ownership of the assets that are held in the trust. If this is not done, there is no trust. If there is no trust, any transfer to the trust is a violation of the NFA whether or not approved by the ATF. If you are in possession of a NFA firearm and your trust is not valid, you have committed multiple violations of the NFA each of which is subject to a 10 year jail sentence, $250,000 in fines & forfeiture of the firearms.

While some people are interested in only acquiring the firearms, many are interested in protecting their family and friends from illegal purchases, transfers, possession and other activities that would subject them to 10 years in jail and $250,000 penalties associated with each NFA violation for a trust.

August 5, 2009

Constructive Possession: NFA Trusts vs Individual Ownership

by David M. Goldman

The NFA defines who can own a Title II firearm as a natural person, corporation or trust…. When an individual makes application to own a Title II firearm they are the only person who can be in possession or have access to the firearm. This creates a problem for many individuals who are married, have others who know the combination or how to gain access to the items, or want to allow others to use the firearms, even in their presence.

Joshua Prince has written and excellent analysis of the case law surrounding constructive possession and the US v. Turnbough case which stated that the Government may establish constructive possession by demonstrating that the defendant exercised ownership, dominion or control over the premises in which the contraband is concealed. Joshua goes on the state that if a spouse or other person does have the combination to the safe where the NFA firearms are kept it would be virtually impossible for the prosecutor to show that the other individual knowingly has the power to exercise dominion and control over the firearms.

The real problem occurs when another does have access to the items or can exercise dominion and control over the NFA firearm because the prosecutor can then charge that individual with constructive possession. In US v. Turnbough, an illegal firearm was in Turnbough’s home and the court of appeals found that a reasonable jury could have found that he, his live in girlfriend, and her child could conclude that all three parties exercised dominion and control over the gun and the possession could be either sole or joint.

July 6, 2009

Form 4 Approval Times Appear to be Decreasing Again

by David M. Goldman

Prior to November, the time to approve a Form 4 was less than 8 weeks. After November 20th, the number of people purchasing NFA items significantly increased and as a result the time to receive an approval on their ATF Form 4 or Form 1 increased to more than 6 months at their peak (26+ weeks).

Today I received a note from a client who obtained his approved Form 4 for his SBS only 59 days after submitting it to the BATFE. Hopefully this will be the norm and not the exception. Please let me know how long your Form 4 or Form 1 is taking for approval.

June 23, 2009

What is the ATF’s Phone number in reference to Trusts or Transfers of Title II firearms

by David M. Goldman

If you are wanting to contact the ATF to find out your status or check on a NFA firearms transfer to an individual, trust, corporation, or entity please call them at 304-616-4500.