ATF 41F — Update

Below is a slightly revised version of an e-mail I just sent my gun trust clients:

We finally know the effective date of the ATF’s new rules regarding gun trusts, responsible persons, and other related matters. That date is Wednesday, July 13, 2016.

Once the new rules become effective, gun trust grantor/trustees will be a responsible person and thus subject to the new photo/finger prints/CLEO notification (not signature) requirements. So will any co-trustees they appoint–though it appears that can be fixed by limiting the powers of those co-trusees. (I’ll keep you all posted on this.IMG_2331 I’m waiting on further guidance from the BATFE.) Mind you, the photo/finger print/notification are only required at the time of a new transaction.

Beneficiaries and successor trustees should not be considered responsible persons under the new rules.

FWIW, I think gun trusts come out well in spite of the new rules. No, you don’t need a gun trust to avoid the CLEO signature requirement, but they still allow trustees to share the trust’s NFA items. In addition, a well-drafted gun trust provides guidance to trustees and to successor trustees on how to handle firearms properly, so they can avoid the “incidental felony.” Finally, the whole process of setting up a gun trust and then administering it forces grantor trustees to consider how they are going to distribute/handle their firearms upon their death and incapacity. These last two reasons have lead me to think that gun trusts are actually a safety measure and an aid to more responsible gun use and ownership.

In short, I continue to think people who have gun trusts–my clients, at least–made a good decision to set one up.

Are CLEOs Shirking Their Duty?

So I’ve been reading the ATF Federal Firearms Regulations Reference Guide 2014, the most current version as of March 7, 2015so you don’t have to. It’s actually an interesting read if you’re into statutes, rules, regulations, and such. Try it.  You may have a knack for deciphering dense, jargon-laden language. But if not . . . at least skip to the Questions and Answers section that begins on page 191 for a more accessible rendition of much of the law and in a format that won’t drive you to wherever you go when you don’t drink.

If you’re like me, you’ll find interesting the answers to two questions on page 210, both of which fall under Section N of the Q&A: National Firearms Act (NFA). Now as everybody who’s anybody who’s at all interested in so-called NFA firearms knows, purchasing such arms comes with its own entry among Dante’s circles of hell [insert image of such circles here to catch the already weary reader’s eye]:


This particular circle floats somewhere between Limbo and Anger, though more than one AFA firearms aficionado swears he has seen the circle hovering around Violence.

There’s a reason for this. You see, NFA firearms are a special category of six firearms or weapons that comes with its own extra set of federal rules buyers must abide before they can get their hands on their new NFA firearm–that is, if their states’ law doesn’t ban them altogether. In brief, NFA firearms include 1.) machine guns, 2.) short-barreled shotguns, 3.) short-barreled rifles, 4.) silencers or suppressors, 5.) destructive devices, and 6.) “any other weapon[s],” an odd little category that really doesn’t include just “any other weapon,” but that’s a post for another time (see USC §5845 (a)).

Now, suppose you walk into your local gun shop to buy a short-barrreled rifle as an individual. The National Firearms Act or NFA is pretty explicit. There are taxes to be paid (the seller pays, but your pocketbook takes the actual hit), stamps to be affixed, fingerprints and photos to be taken (guess whose?), firearms to be identified, CLEO signatures to be secured, and finally, approval of the Secretary of the Treasury to be had. Yup, the NFA falls under the authority of the IRS. But that’s not the worst of your problems. No, your problem begins much closer to home.  With the Chief Law Enforcement Officer or CLEO in the jurisdiction where you live.

You see, because you chose to buy as an individual, the local CLEO has to decide whether to sign off on your application, certifying that s/he is

satisfied that the fingerprints and photograph accompanying the application are those of the applicant and that the certifying official has no information indicating that the receipt or possession of the firearm would place the transferee in violation of State or local law or that the transferee will use the firearm for other than lawful purposes. (CFR §479.85)

Read that again. Now, think about what you just read. Would you certify to all that? For someone you didn’t really know, who’s application just showed up in the mail? I probably wouldn’t. And I’m not alone. Apparently, many CLEOs are passing up the opportunity to put their butt on that dotted line as well.

Kind of takes the huff and the puff out of “Who does s/he think s/he is, anyway?” doesn’t it? Yes, I get the frustration of the prospective NFA firearms owner. But having read that little snippet from the Code of Federal Regulations (CFR), I get the reluctance of the CLEOs who don’t want to bet their career on the application of every John Doe and Jane Smith that lands on their desktops. Circle of Hell doesn’t begin to describe the firestorm that would ensue should that brand new certificated NFA firearm owner use that new NFA firearm to commemorate Columbine.

But surely the CLEO must sign eventually, right? You’re a taxpayer, by cracky! And you pay their salary!! There ought to be a law!!!

Check your outrage. There apparently isn’t a law. Let’s go back to those two questions and answers on page 210 of the AFT Federal Firearms Regulations Reference Guide:

(N16) Is the chief law enforcement officer required to sign the law enforcement certification on an ATF Form 1 or ATF Form 4?

No. Federal law does not compel any official to sign the law enforcement certification. However, ATF will not approve an application to make or transfer a firearm on ATF Forms 1 or 4 unless the law enforcement certification is completed by an acceptable law enforcement official who has signed the certification in the space indicated on the form.

(N17) If the chief law enforcement official whose jurisdiction includes the proposed transferee’s residence refuses to sign the law enforcement certification, will the signature of an official in another jurisdiction be acceptable?


“No.” Can’t get much more blunt than that. Though I guess it depends on what the meaning of “no” is. (As an aside, if I were doing Q&As for the federal government, I would have written, “Sorry Charlie, better luck next time. May the Force be with you. Or some such.)

For the “individual,” there’s no joy if Mudville’s CLEO decides s/he doesn’t want to sign the certification. Unless . . . Unless the “individual” takes advantage of another provision in the CFR, a provision that has implications for who can be a transferee under the NFA, a provision that defines “person” as:

A partnership, company, association, trust, estate, or corporation, as well as a natural person. (CFR §479.11)

Thus, when the NFA says that the transferee must be identified in the application for an NFA firearm, it is only where

. . . such person [i.e., transferee] is an individual, [that] the identification must include his fingerprints and his photograph . . . . (USC §5812) (emphasis supplied)

and therefore, only in such circumstances that the local CLEO must sign off before the application can proceed.

However, if the transferee is a partnership or a corporation or a trust? (Is that too obvious a hint that a trust might be the solution to the problems of both the prospective NFA firearm buyer and the reluctant CLEO?)

Rather than going the individual route, maybe a a trust is the better option. No muss, no fuss. No fingerprints, no photos. No CLEO, no certification. All legal, all by the book. Annie gets her gun. All right. [Readers may be nodding off. Another image to get them to the end.]:


And thus was born the gun trust and your local CLEO relieved of a responsibility s/he didn’t want in the first place. The end.

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