Quote for the Day

“Think about the [gun] trust as a means to keep the client safe and legal, and to provide all of the guidance to their beneficiaries so they stay safe and legal.”

Matthew Bergstrom, attorney

NFA Firearms in an Estate: What’s an Executor (or Trustee?) to Do?

Question Mark_YellowYou’re the executor or personal representative of an estate (they’re the same thing, by the way) or a trustee of a trust. The owner of some NFA firearms has died, and you’re left to deal with the aftermath. (Of course, the real “owner” of any NFA arms in a trust is the trustee, but generally, the initial trustee is the grantor of the trust, who we on the outside looking in, view as the owner.) What can you do with the NFA firearms? If you turn them over to the decedent’s heir under the will or the beneficiaries of his trust, do you have to pay the transfer tax?

Fortunately, the BATFE has been fairly helpful on this point, though it could have been more clear. On September 5, 199, the Bureau issued a letter in which it said the following:

If there are unregistered NFA firearms in the estate, these firearms are contraband and cannot be registered by the estate. The executor of the estate should contact the local ATF office to arrange for the abandonment of the unregistered firearms.

So now you know what to do with unregistered NFA items–if you’re an “executor of the estate,” that is. Did the Bureau also mean “trustee of a trust”? Maybe. Later in the same letter, after the word “heir” has been repeated a number of times, we do see this language:

NFA firearms may be transferred directly interstate to a beneficiary of the estate.

Beneficiary. Is that the same as an heir? Though they are often used interchangeably, the two terms are not precise synonyms. Often the word heir is use to define someone who receives property under a will or via a state’s intestacy laws. Beneficiary, on the other hand, is just as often used to describe someone who receives property under trust. Again, they are also used interchangeably. How is the BATFE using the terms in this letter? Inquiring minds would like to know. Maybe this line from the letter helps,

A lawful heir is anyone named in the decedent’s will or, in the absence of a will, anyone entitled to inherit under the laws of the State in which the decedent last resided. (emphasis supplied)

Hmmm. This sounds like intestacy, but is that all? Does “under the laws of the State” mean the same thing as “operation of law” (see below)?

Well, recently, the Bureau issued the final Rule 41F, which affects so-call NFA or gun trusts, among other things:

It [the new rule] also adds a new section to ATF’s regulations to address the possession and transfer of firearms registered to a decedent. The new section clarifies that the executor, administrator, personal representative, or other person authorized under State law to dispose of property in an estate may possess a firearm registered to a decedent during the term of probate without such possession being treated as a “transfer” under the NF A. It also specifies that the transfer of the firearm to any beneficiary of the estate may be made on a tax-exempt basis. (emphasis supplied)

Such transfers are not taxable transfers because they are not “voluntary”; that is, the executor, personal representative, etc. must follow the terms of the will (or trust?) or law. He or she has no choice. That’s all fine and dandy, but are transfers from trust to beneficiaries tax exempt? Come on. Tell us BATFE. You can do it.

In the commentary on the new rule, the Bureau gets a clear as it’s probably going to get in answering that question, when it says:

Transfers of NFA firearms from an estate to a lawful heir are necessary because the deceased registrant can no longer possess the firearm. For this reason, ATF has long considered any transfer necessitated because of death to be involuntary and tax-free when the transfer is made to a lawful heir as designated by the decedent or State law. However, when an NFA firearm is transferred from an estate to a person other than a lawful heir, it is considered a voluntary transfer because the decision has been made to transfer the firearm to a person who would not take possession as a matter of law. Such transfers cannot be considered involuntary and should not be exempt from the transfer tax. Other tax-exempt transfers—including those made by operation of law—may be effected by submitting Form 5. Instructions are provided on the form. (emphasis supplied)

Operation of law would seem to include transfers mandated by language in trusts, trusts which are created under state law, laws that include fiduciary standards that compel trustees to carry out the wishes of the grantor of the trust, whose wishes are stated in the language of the trust. I’m hanging my hat on that.

There are a couple of other things I’d do to make sure that hat fits in every circumstance, but I won’t go into that here.

 

Quote for the Day

Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.

From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.” It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit. Justice James Wilson interpreted the Pennsylvania Constitution’s arms-bearing right, for example, as a recognition of the natural right of defense “of one’s person or house”—what he called the law of “self preservation.”

Justice Antonin Scalia, District of Columbia v. Heller. 2008.

Why a Use a Gun Trust? or Why Shouldn’t I Use My Existing Living Trust to Purchase NFA Firearms?

Question Mark_Yellow
I had a person ask me about the difference between a gun trust and his existing living trust. I sent him the following (I’ve changed his name to protect his privacy):

Fred,

Again, thanks for contacting me about gun trusts and more specifically, how a gun trust differs from your existing living trust. I’ll try to be brief:

A gun trust or NFA trust is a purpose-built trust, meaning it is drafted specifically to handle and deal with firearms generally and NFA items specifically.

As I’m sure you’re aware, firearms, unlike almost all other property we may own, is very heavily regulated, especially when it comes to “possession” and “transfer” of those firearms—of course, NFA items are even more heavily regulated. In particular, the laws and regulations governing guns define the terms “possession” and “transfer” very broadly to the end of keeping firearms out of the hands of so-called “prohibited persons.” For example, if you own a suppressor or silencer, and you keep it in your home, and your wife or girlfriend has access to it—meaning, if they wanted to, they could pick it up willy nilly—a zealous prosecutor might consider that “constructive possession” and a violation of the law, an accidental felony, if you will.

Because of all this, the typical living trust is not suited to owning firearms and the issues that come with them. For example,

  • A well-drafted gun trust has specific provisions in it to enable others to “possess” your NFA items and other firearms without running afoul of the law. The typical living trust doesn’t.
  • A well-drafted gun trust has specific provisions to protect against the unlawful “transfer” of NFA and other firearms without violating the law. The typical living trust doesn’t.
  • A well-drafted gun trust has specific instructions to your successor trustees, so they don’t violate the law as they deal with your firearms in the event you die or become incapacitated. The typical living trust doesn’t.
  • A well-drafted gun trust comes with the forms necessary to appoint and terminate co-trustees and lifetime beneficiaries in order to effectuate the lawful possession by and transfer of your guns to others. The typical living trust doesn’t.

On a related note, each time you do buy a suppressor or other NFA item using your trust, you are going to have to submit a copy of your trust, including schedules, etc. to the ATF. Do you really want to give your entire living trust to the ATF?

For these and other reasons, the attorneys I know who practice in this area use gun trusts to handle their clients’s firearms rather than revocable living trusts.

I hope this helps. I hope we have the opportunity to work together on your gun trust.

Respectfully,

Greg Taggart

 

 

 

Why Do You Want a Gun Trust?

If your sole purpose in purchasing a gun or NFA trust is so you can buy that silencer and avoid the need for your local Chief Law Enforcement Officer’s (CLEO) signature*, then I’m not your guy. As I explain elsewhere on this site, I see gun trusts as accomplishing that purpose and much more, including encouraging safe and careful ownership of firearms for both you and those who inherit your firearms when you die, as well as helping you make sure that when you die, your guns go to whom you want, how you want, and when you want.

Gun law generally and the law governing NFA firearms more particularly are complex subjects. Persons who ask me to draft their gun trust will get more than a trust, they’ll also receive advice from me and substantial documentation on how to use that trust.

* This changes on Wednesday, July 13, 2016. After that, individuals no longer need a CLEO’s sign off on their NFA purchase, though they still need to notify the CLEO.

A Note on Why I Draft Gun Trusts for My Clients

I thought long and hard about whether I should do my gun trust business on a different website and under a different trade name than the ones I use for my estate and business planning practice. I’ve noticed that many attorneys separate their gun trust work from their other practice areas for fear, I suppose, that they might scare off potential clients who 357_IMG_2725are not interested in or even loathe firearms.

I decided to do all my business using the same website and trade name. Here’s why.

I draft gun trusts for two basic reasons:

1. Gun laws are complicated. Guns are assets, property that must be handled properly and carefully when the owner dies or becomes incapacitated. This is so because guns are regulated property and are therefore unlike virtually any other property people own. Violate one of the laws or regulations governing the transfer or possession of firearms–even unintentionally–and you or your executor or trustee could be in a fix. As an attorney who holds himself out as an estate planner, I feel an obligation to be knowledgable about and able to help my clients manage their firearms in their estate plans so my clients don’t find themselves in that fix. Moreover, since I represent clients in both Wyoming and Utah, this approach seems like a sensible plan to me.

2. Gun trusts promote safety. I believe gun trusts provide an extra layer of safety to gun owners and those who succeed them in ownership and therefore to the public. A trustee of a gun trust assumes a special or fiduciary obligation under the law when they manage firearms in a trust. The trusts that good attorneys draft make the parameters of that obligation crystal clear. The result, I believe, is better informed gun owners and improved public safety. If that’s actually the case, it only makes sense to draft gun trusts.

Of course, I could do all this without promoting my gun trust business on my estate and business planning website. I chose not to do that for two reasons: 1. Two websites are two times the work. Two trade names are twice as much to keep track of. 2. I want people who come to this website to know who they are dealing with. No surprises. I ask potential clients to disclose a lot when they work with me–that’s essential to good planning. It seems fair for me to be completely open with them as well.

 

Annie Hide Your Guns? Justice Scalia Has Died.

Betty Hutton, as Annie, couldn’t get a man with a gun. Some are worried that they won’t be able to even use their guns if President Obama gets to appoint a new justice to the Supreme Court now that Justice Antonin Scalia has died. AScalia2I don’t know if that’s a worry worth worrying about, even if  President Obama makes that appointment. Members of the court–left and right–are loathe to overrule themselves. Sure it can happen, and guns may be the issue that causes them to do so. But first, any Obama appointment has to get through the Senate and Senate Majority Leader Mitch McConnell already says that ain’t gonna happen. 

And so, I’ll just say that I’m going to miss Scalia. A lot. His humor. His writing. His intellect. No, he was not perfect as a man or as a justice, but he was good, very good on both counts. I was amazed at how the initial reports of his death stunned me.

So today, I choose not to get political. Instead, I want to praise the man. To that end and for your enjoyment and edification, I share this interview of him by Brian Lamb of C-SPAN:

Shipping Firearms: It’s Complicated

What follows is an attempt to clarify a confusing area of firearms law–the issue of private, unlicensed persons mailing firearms. There’s a lot of misinformation out there about whether an unlicensed person–that is, a person without a Federal Firearms License or FFL–can mail or ship firearms to another unlicensed person. Before we attempt to cut through the confusion, we offer this little caveat: the discussion below does not take into account state firearms laws, which vary. What follows concerns federal law.

So, can an unlicensed person mail or ship a firearm to another unlicensed person without an FFL as an intermediary?

Short Answer

Legally, yes, if intrastate. Practically . . . it’s complicated. Fed-ex

Longer Answer

Legally, an unlicensed person in, say, Wyoming, can ship a firearm to another unlicensed resident of Wyoming, so long as the transferor “does not know or have reasonable cause to believe the transferee is prohibited from receiving or possessing firearms under federal law” (B1 and B7, pg. 197, ATF Federal Firearms Regulations Reference Guide, 2014 (Reference Guide); see also the citations to the USC and the CFR at B1 and B7). In other words, unlicensed persons or non-FFLs can legally ship firearms INTRASTATE to other non-FFLs. However, if that same unlicensed transferor wanted to ship that same firearm to someone in Utah or Florida–that is, INTERSTATE–s/he would have to ship the firearm to an FFL in Utah or Florida. The law and commentary I’ve cited above is pretty clear on this point–though apparently not to everybody.

Where things get confusing is on the practical side. Practically speaking, if we’re talking about shotguns or rifles–long guns, if you will–a Wyoming resident can mail to a Wyoming resident without an FFL. If it’s a handgun, though, that unlicensed person in Wyoming is probably going to have to ship the gun to an FFL in Wyoming as well–or have a face-to-face meet up with the buyer/transferee–because, as I said, it’s complicated.

You see, there’s the USPS and then there are common carriers like Fed-Ex who service the public at large and contract carriers like trucking companies who service a short list of clients. The Reference Guide says common or contract carriers can transport handguns; the USPS can’t.USPS

Title 18 USC §1715, the law governing the US Postal Service and firearms, is quite explicit. Except in very limited circumstances,

Pistols, revolvers, and other firearms capable of being concealed on the person are nonmailable and shall not be deposited in or carried by the mails or delivered by any officer or employee of the Postal Service.  (Emphasis added)

However, our unlicensed person can mail shotguns and rifles to another unlicensed person in the same state via the USPS, subject to certain requirements. Both the ATF (see B6, pg. 197 of the Reference Guide cited above) and the USPS give thumbs up to the process. And handguns? Well, the AFT says that “a common or contract carrier must be used to ship a handgun” whether it’s INTRASTATE to an unlicensed person or INTERSTATE to an FFL (B7, pg. 197 Reference Guide).

Unfortunately (or fortunately, depending on your point of view) at least the large common carriers are not so willing participants in the shipment of firearms–handguns or long guns. Both Fed-Ex and UPS clearly state that they will only ship if an FFL is at the receiving end, regardless of whether the shipment is INTRASTATE or INTERSTATE.UPS

Of course, Fed-Ex and UPS are not the only common carriers around. Check your local listings. If you find another, probably smaller or local carrier, they may allow an unlicensed person to ship both handguns and long guns to an unlicensed person who lives in the same state without the FFL intermediary. The law allows them to that. The question is do their internal policies? You’re going to have to ask around.

Contract carriers, trucking companies and the like? That’s a concern for another day.

One more point worth noting: Transfers between unlicensed persons that go through an FFL are subject to background checks–with few exceptions. Thus, given that

  • at least the larger common carriers require that all firearm shipments–intra and interstate–between unlicensed persons go through an FFL,
  • the USPS doesn’t ship handguns at all and requires interstate shipments go through an FFL,
  • Federal law requires that all interstate transfers between unlicensed persons go though an FFL,
  • even simple transfers–no money exchanged–between residents of different states must go through an FFL, and
  • at least 18 states and the District of Columbia require all or most intrastate transfers between unlicensed persons go through an FFL,

few firearms transfers legally escape background checks. And that includes online purchases through online outlets like Gunbroker.com that cater to private sellers. In fact, as explained in the Reference Guide:

An unlicensed person who is not prohibited from receiving or possessing firearms may purchase a rearm from an out–of–State source, provided the transfer takes place through a Federal rearms licensee in his or her State of residence. (B3, pg. 197)

Yes, some do escape and fall into the wrong hands. The law is not the only ass, after all.

To this end–the end of keeping firearms out of the hands of asses–the ATF encourages federal firearms licencees (FFLs) to work with private sellers to facilitate background checks on private buyers (see page 175-176 of the Reference Guide for more). Not a bad idea, especially if you–the private seller–are worried about bona fides of a potential buyer. Could save you and someone else a lot of heartache.

How about shipping to yourself? Well, as they say, that’s different. Federal law–remember, we’re talking only about Federal law–says that you can ship interstate to yourself for your own use to engage “in hunting or other lawful activity,” but according to question B8, pg. 198 of the Reference Guide:

The package should be addressed to the owner 1in the care of’ the out–of–State resident. Upon reaching its destination, persons other than the owner may not open the package or take possession of the firearm. (emphasis added)

Likewise, a gun owner moving from one state to another may “may transport or ship the firearm interstate” and if using a moving company, “must notify the mover that firearms are being transported” (B9, pg. 198).

And NFA firearms? Do the same rules apply? Of course, if any of the firearms you want to ship or transport are of the NFA variety, then you “must have prior approval from ATF.” The prior approval process does not apply to suppressors/silencers, by the way (CFR §478.28).

ATF 41F: There’s a Horse in Here Somewhere, but I Haven’t Found It!

Having read the relevant parts of the 41F document released Monday, December 4th, here are some of my thoughts.

First, the actual rule:

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. 1.) 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. 2.) 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. (emphasis and numbers supplied, except in the section heading, here and below)

Okay, now, let’s see if I’ve got this straight:

Under § 479.11, “in the case of an unlicensed entity, including any trust, partnership, association [etc],” I am a “responsible person” if I “possess, 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.”

Correct so far?

But what about the next sentence? There I learn that “in the case of a trust, those persons with the power or authority to direct the management and policies of the trust [meaning “those persons” referred to in the first sentence, I assume] include any person who has the capability to exercise such power [which power? well, it must be “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,” as explained in the first sentence] and possesses, directly or indirectly, the power or authority under any trust instrument, or under State law, to receive, possess, ship, [etc. etc.] for, or on behalf of, the trust.”

Do you see the problem? It seems to me that the second sentence in the definition of a “responsible person” essentially states the “receive, possess, ship, transport” language twice, the first time by implication, that is, by referring back to the first sentence via the words “such power.” It states the “receive, possess, ship” language explicitly the second time, but adds the critical word “and” before the word “possesses.”

Am I missing something here? If not, then my question is: Does the second sentence stand apart and alone from the first sentence, or does the second sentence refine and narrow the first sentence? In other words, with regard to trusts, is “responsible person” defined one way or two different ways in § 479.11?

In the alternative, maybe the words “such power” in the second sentence refer back only to the words “power or authority to direct the management and policies of the trust” a few words back in the same sentence. That reading makes more sense, but even so, I’m left wondering whether the rule has one or two definitions of “responsible person” for trusts.

On a separate note, someone today was touting the importance of the word “and” before the word “possesses” in the second sentence. There are really two important “ands” in the definition: the one before “possesses” and the one between “management and policies.” Thus, for example, if the trust instrument explicitly granted a co-trustee the power or authority to direct the management but withheld the power or authority to direct the policies of the trust, arguably, that co-trustee wouldn’t be a responsible person, would s/he?

And finally, what does the word “capability” mean in the context of “such power” and how important is the word “direct”? (Very important, I would argue.)

Oh, and one more: did anyone notice the plurals “powers or authorities” in the beneficiary example at the end of the definition of “responsible person”? It’s the only use of those plurals in the entire document.

Of course, all this may be beside the point, given how often and how poorly paraphrased the definition of “responsible person” is used throughout the 248 page document. Take a look at pages 4, 32, 105, 114, 118-119, 124-125, 137, 145-146, and 209-210. On one page, the paraphrase/explanation seems to clarify who qualifies as a “responsible person.” On the next, clarity takes a holiday.

For example, consider pages 118-119 of the commentary (emphasis all mine):

First the commentary tells us that “the definition of ‘responsible person’ in this final rule applies to those who possess the power or authority to direct the management and policies of an entity insofar as they pertain to firearms.” (Note that the bolded words do not appear in the actual rule. The concern seems to be with management and policies.)

Then the goal posts shift to “[in trusts] those possessing trust property—trustees—are also the individuals who possess power and authority to direct the management and policies of the trust insofar as they pertain to trust property, including firearms.” (Note here, the additional underlined words, also not part of the actual rule. Also note that we’re now talking about “possessing trust property” and “management and policies.”

Then the goal posts move again—it appears to me, at least—when the commentary “clarifies” that the rule doesn’t apply to “individuals who would not, or could not, possess the firearms.” (Note the absence of the “management and policies” element. Possession of firearms seems key.)

Finally, those damn goal posts move to another end zone, when the commentary informs us that “beneficiaries and other individuals may be considered “responsible persons [if they have the] capacity to control the management or disposition of a relevant firearm on behalf of a trust or legal entity.” (Note that the word dispose appears in the actual rule; however, the combination management or disposition appears just once in the entire document—and you’re reading it. By the way, among the various meanings of “dispose” or “dispose of,” at least one is apt to the rule: “to transfer to the control of another.”)

My concern is that the seemingly constant insertion of new or different words into the “responsible person” equation makes it very difficult if not impossible to determine the proper course of action.

To be fair, as I read and re-read the rule and commentary, things seem clearer. That said, as I read and re-read the picture sometimes becomes muddier. For the moment, all I can think is, What a confusing mess.

Don’t go too far away campers. More to come.

ATF 41P Becomes 41F: And the final answer is . . . .

So Attorney General Loretta Lynch put her pen to paper yesterday, and the ATF’s proposed rule 41P became its final rule 41F–with modifications. Here’s my first take: There’s best news, good news, and bad news. 

The best news is two-fold: 1. the final rule does not become effective until 180 days after its publication in the Federal Register, and 2. the final rule eliminates the need for your local CLEO’s signature, though it does require notification of the CLEO.

The good news is that your existing NFA gun trust remains an effective tool for managing and sharing your NFA arms, especially for the next 180 days, but even after that–assuming it’s drafted properly. Given that the effective date is at least 180 days off, you should be able to purchase and handle your NFA firearms as you have in the past–assuming, of course, that you’ve done that legally–for at least the next six months.

The bad news is that the new rule, besides eliminating the CLEO signature requirement, also introduces a new definition– “responsible person” –into the mix. Persons in a trust and other legal entities (LLCs etc.) who meet the definition of a “responsible person” will need to undergo a background check, including providing fingerprints and photo, whenever they purchase or transfer an NFA item, much like individuals do now.

The term “responsible person” very clearly includes the Grantor/Trustee. It somewhat less clearly does not include many or most beneficiaries. Thus, if you’re the grantor and trustee of your NFA trust, you will clearly be a “responsible person” when the rule becomes effective; your beneficiaries will probably not.

As for persons you may appoint as co-trustees, for the moment, they occupy a grey area–again, when the rule becomes effective. The rule itself seems quite clear, but much of the ATF commentary that accompanies the rule muddies the water (the rule and commentary run 248 pages, only 10 of which are part of the actual rule). I want to study the document and resulting issues more thoroughly before I give my final answer on the “muddier” questions.

So consider this a heads up. I’ll keep you informed as things and my thinking develop. But to repeat: the effective date of the rule is at least 180 days out, so those with an existing NFA trust have plenty of time to adjust things if needed.

 

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