Pending Gun EO Chatter, Update See Post #114

[Oh Shoot]

You might for a Form 1 SBR, but I don't think you do on a Form 4 suppressor as I don't think it is technically a firearm.  .

 

A suppressor is most assuredly a firearm under federal law.

 

- OS

[midtennchip]

Just on the Trust issue, there is nothing required for most Trusts before the effective date of the Final Rule.  I posted a couple of things in the NFA section on the issue, though.  Once the Final Rule becomes effective, then there are some things that may need to be done regarding adding or removing Trustees.  As a general rule, if you are willing to provide the Responsible Person information for all of your Trustees, the Trust itself likely does not need to be amended.

 

The other thing is that, even once the Final Rule is effective, it MIGHT not last that long.  We'll see after the election.  I won't hold my breath waiting, but several candidates are claiming they will undo the Rules being implemented in connection with the Executive Order.  

[Hozzie]

A suppressor is most assuredly a firearm under federal law.

 

- OS

 

Ok, maybe I did then.  It has been a while since I got my last suppressor.

[Grand Torino]

There are words there. In a white font. Highlight it.

Disappearing ink....

[Hershmeister]

Right. But in my scenario it is a supplement to Joe's income (he is a plumber).


Sent from my iPhone using Tapatalk

I saw what you did there

[Lumber_Jack]

Yeah, he is wrong.  There is no change whatsoever regarding selling firearms in BHO's directives. FOX is getting it wrong over and over this afternoon on that particular issue, keep hearing "experts" talking about how all "gunshow transactions" will have to have background checks, or all transactions period, stuff like that.

 

As far as the trust issue, it's my understanding that unlike an individual NFA transfer, TN already requires TICS on whoever actually picks up the firearm transferred on a trust, changed in the last year or less,  yes?

 

- OS

 

bought my suppressor well over a year ago, maybe two and had to have a TICS run when I was approved and come to take possession.  Not sure how long that rule has been in place.  It was just me though, not the whole trust.  

[Oh Shoot]

bought my suppressor well over a year ago, maybe two and had to have a TICS run when I was approved and come to take possession.  Not sure how long that rule has been in place.  It was just me though, not the whole trust.  

 

You sure they actually did TICS, or did you just fill out a 4473?

 

It's my understanding that no background check is run for NFA transfer to an individual (since not required federally, since already done), but that for trusts at least TN has started doing the checks, since the individual receiving the firearm may not be anyone who has ever undergone one.

 

In all cases, FFLs must do a 4473 for NFA items to keep on file however.

 

- OS

Edited January 5, 2016 by Oh Shoot

[tnhawk]

exactly.  Oh heck he just wiped a tear.

Where were his tears after Americans died at Benghazi?

[xsubsailor]

Found this on another forum:

 

NFA Lawyers’ Initial Review of Final Ruling ATF 41P

The BATFE and Attorney General finalized proposed regulation 41P on January 4, 2016. A link to same can be found at https://www.atf.gov/file/100896/download . As many of you are aware, this regulation impacts gun trusts. This initial review provides an overview of what those key changes are.

This ruling is 248 pages long. At the top of the ruling is the following language:

“This final rule was signed by the Attorney General on January 4, 2016. It is effective 180 days after date of publication in the Federal Register.”

If the rule was published in the Register on January 4, 2016. This means there is still no CLEO signoff, fingerprints, or picture requirement for trusts until July 1, 2016.

Let us get to the “meat and potatoes” of 41P. Of the 248 pages comprising 41P, pages 238-239 are of key importance. Below is the language impacting gun trusts:

§ 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. 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. 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. 

What all of this means is any responsible person in a trust must undergo the following requirements:

Fingerprints
Picture
No CLEO sign-off. You simply notify your CLEO.

Well, who are responsible persons in a gun trust? I will break down the two critical elements. 
Responsible persons are:

1) Persons with the power or authority to direct the management and policies of the trust;

AND,

2) Have the power or authority to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for the trust.

It appears as though responsible persons are those who meet both elements. If an individual does not meet both of these elements, they are not responsible persons. Thus, the 41P requirements would not apply to that individual.

In NFA Lawyers’ trusts, co-trustees do not have any power or authority to direct the management and/or policies of the trust. Co-trustees do not meet element number one. We draft trusts this way in order to prevent co-trustees from having any control over your NFA weapons or other firearms in the trust.

Based on the face of 41P, our trusts are already 41P compliant. Co-trustees in our trust will never have to send in fingerprints, pictures, or notify their CLEO. Additionally, 41P clearly states that beneficiaries are not subject to these requirements.

As with many new regulations, there will be much litigation over these topics. The ATF may make revisions or opine further on their position, which may change the impact of 41P. 

Regardless, NFA Lawyers will keep our clients apprised of any required changes to their trusts, if any. It has been our pleasure to do business with each and every one of our clients. We will do everything we can to prevent our government from infringing on our Right to Keep and Bear Arms.

[midtennchip]

Found this on another forum:

 

NFA Lawyers’ Initial Review of Final Ruling ATF 41P

The BATFE and Attorney General finalized proposed regulation 41P on January 4, 2016. A link to same can be found at https://www.atf.gov/file/100896/download . As many of you are aware, this regulation impacts gun trusts. This initial review provides an overview of what those key changes are.

This ruling is 248 pages long. At the top of the ruling is the following language:

“This final rule was signed by the Attorney General on January 4, 2016. It is effective 180 days after date of publication in the Federal Register.”

If the rule was published in the Register on January 4, 2016. This means there is still no CLEO signoff, fingerprints, or picture requirement for trusts until July 1, 2016.

Let us get to the “meat and potatoes” of 41P. Of the 248 pages comprising 41P, pages 238-239 are of key importance. Below is the language impacting gun trusts:

§ 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. 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. 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. 

What all of this means is any responsible person in a trust must undergo the following requirements:

Fingerprints
Picture
No CLEO sign-off. You simply notify your CLEO.

Well, who are responsible persons in a gun trust? I will break down the two critical elements. 
Responsible persons are:

1) Persons with the power or authority to direct the management and policies of the trust;

AND,

2) Have the power or authority to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for the trust.

It appears as though responsible persons are those who meet both elements. If an individual does not meet both of these elements, they are not responsible persons. Thus, the 41P requirements would not apply to that individual.

In NFA Lawyers’ trusts, co-trustees do not have any power or authority to direct the management and/or policies of the trust. Co-trustees do not meet element number one. We draft trusts this way in order to prevent co-trustees from having any control over your NFA weapons or other firearms in the trust.

Based on the face of 41P, our trusts are already 41P compliant. Co-trustees in our trust will never have to send in fingerprints, pictures, or notify their CLEO. Additionally, 41P clearly states that beneficiaries are not subject to these requirements.

As with many new regulations, there will be much litigation over these topics. The ATF may make revisions or opine further on their position, which may change the impact of 41P. 

Regardless, NFA Lawyers will keep our clients apprised of any required changes to their trusts, if any. It has been our pleasure to do business with each and every one of our clients. We will do everything we can to prevent our government from infringing on our Right to Keep and Bear Arms.

 

Not sure I agree with that.  Co-Trustees generally have the power to possess the NFA items in an NFA Trust (certainly in every one I have ever seen).  The Final Rule states that for a trust, a Responsible Person includes "any person who has the capacity to exercise such power and possesses, directly or indirectly, the power or authority . . . to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm . . ."  

 

Maybe his client gets away with not sending in the Form, fingerprints, and photos on a co-trustee, but I really don't think that's how the ATF will view it.   He seems to think that "direct the management and policies" of the trust is going to avoid almost all of the issues with 41F.  From his point of view, there appears to be no downside to 41P, other than the CLEO notice.  However, I just don't think that is correct, given the text of the Rule and the intended purpose (i.e., to require background checks).

[No_0ne]

To further complicate things, what about the following scenario:

 

Joe goes and purchases a few firearms that are a good deal. He routinely purchases firearms from his coworkers who need cash and offer them to him at a discount. He sells via the internet and at gun shows regularly. However, for every purchase and sell he makes he meets at a local FFL and a background check is ran on the buyer. Does he need to be licensed?

 

TAX EVASION!

 

Not complicated, that's already tax evasion, even if the activity generating the income is illegal.  See Al Capone.

 

 

 

Agreed, but only if they can prove he is using for that.  I don't use my gun money to live and most I know don't. We use any gun money (profit or loss) to buy other guns, not use for living expenses.  If you are, then you should be a dealer.  That was the case before any of this.  Nothing in this EO changes that.

 

"Livelihood", in this sense, doesn't mean you live off of it, or that the income is required.  In fact, you can be technically "in the business of" even if you lose money on all your transactions.  Being piss-poor at a activity doesn't make it legal, I'm sure there were a few bankrupt mobsters over the years ...

 

 

Reading through all this, it looks like "much ado about nothing", with 2 possible exceptions:  the changes to the trust laws, which I know nothing about, and the reporting requirements on SS recipients and others.  This is the most dangerous aspect of this EO, as such it might also be the part least likely to pass judicial muster as well ...

 

[Lumber_Jack]

You sure they actually did TICS, or did you just fill out a 4473?

It's my understanding that no background check is run for NFA transfer to an individual (since not required federally, since already done), but that for trusts at least TN has started doing the checks, since the individual receiving the firearm may not be anyone who has ever undergone one.

In all cases, FFLs must do a 4473 for NFA items to keep on file however.

- OS

Ahh, good call. Now that you mention that, I don't remember paying the $10 fee. May have just been the 4473 then

[GlockSpock]

Not complicated, that's already tax evasion, even if the activity generating the income is illegal.  See Al Capone.

 

 

 

 

"Livelihood", in this sense, doesn't mean you live off of it, or that the income is required.  In fact, you can be technically "in the business of" even if you lose money on all your transactions.  Being piss-poor at a activity doesn't make it legal, I'm sure there were a few bankrupt mobsters over the years ...

 

 

Reading through all this, it looks like "much ado about nothing", with 2 possible exceptions:  the changes to the trust laws, which I know nothing about, and the reporting requirements on SS recipients and others.  This is the most dangerous aspect of this EO, as such it might also be the part least likely to pass judicial muster as well ...

 

Sure it may have already been and will always be tax evasion, but would you need an FFL for that activity if you are going through an FFL to buy/sell for a form of income?

[TripleDigitRide]

Phil Valentine just said on his radio show that Obama put a limit of 50 firearm sales per year before you'd be required to obtain a FFL. That's the first I'm hearing of this. Can anyone verify this information, or is ol' Uncle Phil once again flapping his gums about something he knows nothing about?

[Oh Shoot]

Phil Valentine just said on his radio show that Obama put a limit of 50 firearm sales per year before you'd be required to obtain a FFL. That's the first I'm hearing of this. Can anyone verify this information, or is ol' Uncle Phil once again flapping his gums about something he knows nothing about?

 

Yes.

 

I've heard it all today, including (both on FOX no less), that:

 

- all sales at gunshows will have to go through background check

- all sales period will have to go through background check,

 

- OS

[felinesNfreedom]

Phil Valentine just said on his radio show that Obama put a limit of 50 firearm sales per year before you'd be required to obtain a FFL. That's the first I'm hearing of this. Can anyone verify this information, or is ol' Uncle Phil once again flapping his gums about something he knows nothing about?

 

 

Uncle phil also said there is a gun show loop hole and we should throw them a bone and let them close it.

[No_0ne]

Sure it may have already been and will always be tax evasion, but would you need an FFL for that activity if you are going through an FFL to buy/sell for a form of income?

 

Interesting question.  I would guess yes, unless you are acting as an agent of the FFL you're doing the transfers through, in which case you would be no different than an employee of the LGS (due to liability concerns I can't imagine any licensed dealer allowing this).  Simply having your purchasers do a background check through an outside FFL, with you as the seller, would still be construed as "in the business of" since you are doing this with the purpose of making a profit.  YMMV, I'm not a lawyer or an ATF agent, it might be informative to pose that question to the local branch of the BATFE ...

[Moped]

I copied and pasted but nothing posted.

Actually it did on TapaTalk.  I was looking at it on my phone and saw the words. It just didn't make sense.  There seemed to be a lot of repeat sentences and spaced were dropped.

[GlockSpock]

Interesting question.  I would guess yes, unless you are acting as an agent of the FFL you're doing the transfers through, in which case you would be no different than an employee of the LGS (due to liability concerns I can't imagine any licensed dealer allowing this).  Simply having your purchasers do a background check through an outside FFL, with you as the seller, would still be construed as "in the business of" since you are doing this with the purpose of making a profit.  YMMV, I'm not a lawyer or an ATF agent, it might be informative to pose that question to the local branch of the BATFE ...

 

I would assume you are correct, but it just goes to show the level of ridiculousness of some of this. Obviously making every transaction through an FFL would "keep guns out of the right hands". Lets even say you filed taxes showing you made a profit and paid taxes on those profits to avoid tax evasion. So even though that would theoretically be "in the business", simply without an FFL, but meeting at your local FFL for every transaction, it is interesting to think about how that would be argued against.

 

Just theoretical though of course.

[No_0ne]

I would assume you are correct, but it just goes to show the level of ridiculousness of some of this. Obviously making every transaction through an FFL would "keep guns out of the right hands". Lets even say you filed taxes showing you made a profit and paid taxes on those profits to avoid tax evasion. So even though that would theoretically be "in the business", simply without an FFL, but meeting at your local FFL for every transaction, it is interesting to think about how that would be argued against.

 

Just theoretical though of course.

 

You're looking at this through the lens of the current situation, however most of the rules regarding who needs to hold an FFL license dates from the 1968 GCA laws, and the regulations enacted since that time.  That law was an attempt to curb the easy availability of obtaining guns across state lines by creating the FFL system, making licensed dealers the only entities who can legally sell guns from one state to another.  Background checks didn't come into being for a large part of the nation until after the Brady law of 1993, thus conducting background checks was not a responsibility of licensed dealers when the regulations stipulating who is required to hold a FFL were originally written ...

[GlockSpock]

You're looking at this through the lens of the current situation, however most of the rules regarding who needs to hold an FFL license dates from the 1968 GCA laws, and the regulations enacted since that time. That law was an attempt to curb the easy availability of obtaining guns across state lines by creating the FFL system, making licensed dealers the only entities who can legally sell guns from one state to another. Background checks didn't come into being for a large part of the nation until after the Brady law of 1993, thus conducting background checks was not a responsibility of licensed dealers when the regulations stipulating who is required to hold a FFL were originally written ...

Now that I can fully agree and concede to.


Sent from my iPhone using Tapatalk

[Oh Shoot]

I would assume you are correct, but it just goes to show the level of ridiculousness of some of this. Obviously making every transaction through an FFL would "keep guns out of the right hands". Lets even say you filed taxes showing you made a profit and paid taxes on those profits to avoid tax evasion. So even though that would theoretically be "in the business", simply without an FFL, but meeting at your local FFL for every transaction, it is interesting to think about how that would be argued against.

 

Just theoretical though of course.

 

If your biz is illegal,  simply paying taxes on your income doesn't make you not still culpable for the crime, eh?

 

Murder doesn't become legal just because you paid taxes on your income for it, ya know. If you are engaged in the business of selling firearms, you need a license, or it's a felony, simple as that, ever since 1968.

 

- OS

Edited January 6, 2016 by Oh Shoot

[GlockSpock]

If your biz is illegal, simply paying taxes on your income doesn't make you not still culpable for the crime, eh?

Murder doesn't become legal just because you paid taxes on your income for it, ya know. If you are engaged in the business of selling firearms, you need a license, or it's a felony, simple as that, ever since 1968.

- OS

I was mainly just looking at the irony of using an FFL for every transaction but not holding one yourself. Illegal but meeting the spirit of the law, which would be guns out of bad people's hands and background check for each transaction.

I was looking through a glass colored the tint of today, when realistically as you pointed out the regulations were set before background checks even existed.

Makes sense.


Sent from my iPhone using Tapatalk

[No_0ne]

I was mainly just looking at the irony of using an FFL for every transaction but not holding one yourself. Illegal but meeting the spirit of the law, which would be guns out of bad people's hands and background check for each transaction.

I was looking through a glass colored the tint of today, when realistically as you pointed out the regulations were set before background checks even existed.

Makes sense.


Sent from my iPhone using Tapatalk

 

That was me, thank you, don't be giving Oh Shoot credit for my astute analysis ...

[Oh Shoot]

That was me, thank you, don't be giving Oh Shoot credit for my astute analysis ...

 

Well, we both mentioned it, mine was just more succinct so it stuck. :)

 

- OS