Whither ATF 41P? Whither NFA Gun Trusts?

In a post back in September 29th of this year, I wrote about the reluctant Chief Law Enforcement Officer or CLEO problem or obstacle that many hopeful purchasers of NFA firearms encounter when they try to buy a suppressor, short barreled shotgun, or other such that are legal in many, if not most, states. What problem you ask? The problem that in order for individuals to purchase such items, they must submit their photograph, fingerprints, and signed certificate from the local CLEO, certifying that he or she has “no information indicating that the receipt of the firearm would place the transferee [the individual] in violation of State or local law or that the transferee will use the firearm for other than lawful purposes” (CFR §479.85).

IMGP2792Not surprisingly, some CLEOS balked at signing their professional and political life away. Others refused to do so simply because they didn’t like the idea of their citizens owning such firearms. Whatever the reason, the buck stopped there. No signature, no firearm, no recourse (see questions N16 and N17, page 201 of the 2014 version of the ATF Federal Firearms Regulations Reference Guide).

And thus the gun trust. You see, the same laws, rules, and regulations that mandate the CLEO signature for an individual application, specifically provide that the same weapons can be purchased by various entities, including companies, partnerships, associations, estates, and trusts. And no CLEO signature is required when an entity rather than an individual makes the purchase. But that may change–as early as  some time in January 2016.

On Monday, September 9, 2013, the AFT proposed amending 27 CFR Part 479 to, among other things, require so-called “‘responsible persons’ of [legal entities, including trusts] to submit . . . photographs and fingerprints, as well as a law enforcement certificate” signed by a CLEO–just like individuals currently have to do. The proposal, referred to by its docket number ATF 41P, was greeted with, shall we say, a great lack of enthusiasm. In fact, the response was so overwhelming and so negative that the AFT has yet to finalize the rule. Just a few days ago, the ATF was saying that the final rule would be out by the end of December 2015. The DOJ has now changed that date to “01/00/2016.” No, I don’t know when “00” is either.

What will the final rule look like? Did the ATF pay any attention to the many well-argued comments that the rule change was not needed, that those who proposed the change had a poor understanding of trust law, that etc. etc. etc.? We’ll see in a month or so. In the meantime, I’d argue, get while the gettin’s good. If and until the rule changes, well-drafted trusts continue to be the best way to buy NFA firearms and suppressors because trustees don’t have to provide photos, fingerprints, or certificates with the local CLEO’s John Hancock. Furthermore, I’d argue that trusts are the best way–or at least a way you should consider–to own all firearms because of the protections built into well-designed gun trusts that protect grantors, trustees, and beneficiaries from committing the so-called “accidental felony.”




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