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|October 31, 2013, 10:13 PM||#1|
Join Date: March 20, 2008
Location: Lexington, KY
National Firearms Act - Frequently Asked Questions
This thread is intended to be a fairly comprehensive set of answers to common questions about ownership of National Firearms Act regulated firearms. As a long-time poster in this sub-forum, I've seen a lot of the same questions asked repeatedly. I wanted to provide a single thread that could be stickied that would provide answers to those questions. I am a Kentucky-licensed attorney, but you should not regard any of the information in this thread as creating an attorney-client relationship between myself and you, the reader. I know a lot about NFA firearms, and NFA trusts specifically, but I certainly don't know everything. The ATF also changes their positions on things from time to time.
If you have additions or changes to information in this FAQ, post them. If you have questions that you think are common that should be included in this FAQ, post those as well.
What are Title II firearms?
What we think of as “normal” guns, whether they are pistols, rifles or shotguns, are Title I firearms. This refers to the section of federal law that regulates their manufacture and sale. Title II firearms are National Firearms Act firearms, including machine guns, short-barreled rifles, short-barreled shotguns, any other weapons, destructive devices and silencers. (Yes, silencers are “firearms” within the definition of the federal law that regulates them.) Some people refer to these firearms as “NFA” guns, referring to the National Firearms Act of 1934 that regulates them. Other people call them “Class III” firearms, because the type of dealer who can sell them is a Class III FFL.
Who is the BATFE?
The Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE or ATF) is the federal agency that is tasked with regulating firearms. When you submit your forms to get a tax stamp for a Title II firearm, the BATFE processes the paperwork and issues the stamp. Their NFA branch is in West Virginia.
What is NFA?
NFA stands for National Firearms Act. It refers to the National Firearms Act of 1934, which instituted a punitive tax for certain firearms: machine guns, silencers, short-barreled rifles, short-barreled shotguns, any other weapons and destructive devices. The $200 tax was a lot of money in 1934, and was designed to stop people from owning these firearms. Since the cost of the tax has not increased with inflation, ownership of these types of firearms is once again cost-effective, provided you’re willing to jump through a few hoops.
Can I really own a machine gun/silencer/short-barreled rifle/short-barreled shotgun/grenade?
Many people are under the mistaken impression that machine guns, silencers, and short barreled rifles and shotguns are illegal. In fact, these items are perfectly legal to own in many states, provided you follow federal registration requirements. The 1934 National Firearms Act (NFA) requires registration and a tax for the transfer or construction of these items. The registration is accomplished using certain ATF forms. The most common ones are the Form 1 (for construction of a new NFA item), Form 4 (for the transfer of a new NFA item) and Form 5 (for inheritance of an NFA item from an estate). When the ATF has approved your form, you will receive an actual canceled tax stamp in the mail.
Can I own a machine gun?
Even for the experienced NFA collector, machine guns may be financially out of reach. They are legal to own by following the NFA registration process, but what makes them different from other NFA items is that because of federal laws passed in 1968 and 1986, no new machine guns can be manufactured or imported. That means there is a fixed number of legally registered machine guns in the United States. Supply and demand makes them very expensive. The cheapest available machine guns at this time are MAC-10 machine pistols at approximately $3000. A transferable M16 is closer to $20,000. Since you cannot manufacture your own machine gun, the only way to get one is to buy one on a Form 4 or inherit one on a Form 5.
You might be tempted to become a special type of FFL (federal firearms licensee, or gun dealer) in order to get access to cheaper or newer machine guns. Understand that it is a complicated process to become licensed to sell machine guns, and the ATF does not allow you to do it simply to expand your collection—you must be in the business of buying and selling, or manufacturing, machine guns to get this license. It also requires additional taxes and fees that drive up the cost, as well as extensive record-keeping. In short, beware anyone suggesting that you can own newer or cheaper machine guns. When it comes to fully automatic weapons, if it sounds too good to be true, it probably is!
Can I own a silencer (or suppressor)?
Many people “in the know” refer to these as suppressors, since they suppress the sound of a firearm, but cannot fully silence the noise of a gun firing. However, federal law refers to them as silencers, and that was the name used by their inventor, Hiram Maxim (who also invented the car muffler). It is legal to manufacture new silencers, so you can construct one after submitting a Form 1 to the ATF, or you can buy or inherit one. Modern silencers are much more effective than the original Maxim silencers. Unless you own a machine shop, it makes sense for most people to buy a silencer. Because the silencer's serial number must be submitted on the Form 4 to the ATF, the normal process is to go to a dealer that sells silencers and purchase the silencer. The dealer retains the silencer while you're waiting on ATF approval. Once you receive your tax stamp in the mail, you can pick up your new toy. Note that the National Firearms Act uses the term “firearm” in a narrow legal sense to refer to items it covers, and that includes silencers. It make seem weird to call a silencer a firearm, but this specific law does.
Can I own a short-barreled rifle or shotgun (SBR and SBS)?
Under federal law, rifles must have a barrel of at least 16 inches. Shotguns must have a barrel of at least 18 inches. By applying for a tax stamp, you can chop your shotgun or rifle barrel as short as you like. Possibly the most popular rifle for registering as an SBR these days is the AR15. Because the lower receiver is the firearm, one can register an AR15 as a short-barreled rifle and then change out uppers to multiple configurations. The Form 1 requires you to enter a length and caliber. That doesn't mean you're stuck with that configuration. Once your firearm is registered as a short-barreled rifle, your barrel can be any length or caliber. The ATF wants you to update them if you change configurations “permanently,” but as long as you can swap back to the “original” upper, the ATF doesn't need to know if you swap out for a different upper occasionally. This provides you with the ability to have barrel lengths ranging from as little as 4 inches to 14.5 inches, in calibers from 9mm to 5.56 and all the way up to .50 Beowulf with just one tax stamp. You just have to make sure that your short barreled uppers only ever get installed on a lower receiver registered as a short-barreled rifle or a pistol-configured lower receiver.
Can I own an Any Other Weapon (AOW)?
Another category of NFA items is the Any Other Weapon. This is something of a catch-all category. Things like pen guns and cane guns fall into this category. The main thing most collectors might want to register as an AOW is a smooth-bore pistol. Shotguns with stocks (or that have EVER had a stock installed) can be made into short-barreled shotguns. But virgin shotgun receivers can be built with a pistol grip only and short barrel. These are registered as Any Other Weapons. Although there is some disagreement on the matter, the ATF also takes the position that a handgun with a vertical forward grip must be registered as an AOW.
The AOW has one final difference from other categories of NFA items. Manufacturing or transferring all other NFA items requires a $200 tax. For the AOW, manufacturing is still a $200 tax, but a transfer is only a $5 tax.
Can I own a destructive device?
The destructive devices category of NFA firearms includes an interesting variety of firearms and weapons. Weapons with a bore larger than half an inch are destructive devices, except for shotguns which the government has deemed “suitable for sporting purposes.” That means that most 12-gauge shotguns are not destructive devices, since they are suitable for sporting purposes, but certain ones are. The “Street Sweeper” is a particular 12-gauge revolving shotgun created for riot control purposes, that was deemed a destructive device. Rifles can also be destructive devices, such as the Lahti 20mm anti-tank rifle, which must be registered.
Explosives are also destructive devices. Grenades, mines, bombs, rockets and missiles are all destructive devices, which can be legally owned if the tax stamp is paid. However, a separate $200 tax stamp must be paid for each one, and once you blow it up, that $200 is gone forever.
One of the most common destructive devices is the 40mm grenade launcher, whether stand-alone or in M203 configuration for use under the barrel of an M16 or AR15. These launchers are a destructive device requiring a $200 tax stamp, as are any explosive rounds for them. However, non-explosive 40mm rounds are not destructive devices, meaning you can own and fire all the “chalk” rounds you want for your registered 40mm launcher without paying additional taxes.
Any device that was never designed to be used as a weapon is not normally a destructive device, so 37mm “flare” launchers are not destructive devices and are a common alternative to 40mm launchers. However, be aware that if you create any “anti-personnel” type rounds for your 37mm, it becomes a destructive device. You may only use flare, smoke and chalk rounds if you intend for it to remain a “non-firearm.”
Can I get approved for a tax stamp?
As long as you are not a prohibited person, you'll be approved. Which is to say, if you can buy a regular (Title I) firearm at a dealer with no hiccups, then you're good to go. There's nothing particularly special about the ATF's approval process for tax stamp applications—it just takes longer, and for individuals, requires fingerprinting. But everyone who can legally own a firearm can legally own an NFA firearm.
Of course, what federal law allows you to own may differ from what your state's laws allow, so if you live in a state that isn't NFA friendly, you will be denied a tax stamp. But you should be doing that research before you ever submit your tax stamp application.
What is an NFA trust/gun trust?
A trust is a traditional estate planning document. The revocable living trust is a trust which can be revoked or changed as long as the creator is still alive. When people refer to an NFA trust or gun trust, they are referring to a revocable living trust which is being used to own particular types of firearms. By using a trust, some of the more thorny problems related to ownership of Title II firearms can be avoided.
What is a Form 1?
The ATF’s Form 1 is the form that you must fill out if you want to make or manufacture a new Title II firearm. The registry is closed for machine guns, but all other types of Title II firearms can be legally manufactured by individuals. The tooling and machines required to make an effective suppressor may not be available to everyone, but many people manufacture their own short-barreled rifles by cutting down the barrel or installing a shorter barrel. If you want to put a barrel of less than 16 inches on your AR15, for instance, you will need to file a Form 1 with the ATF.
What is a Form 3?
The ATF’s Form 3 is a form used to transfer a Title II firearm from one Class III dealer to another, usually from outside of the state. If you buy a Title II firearm from outside Kentucky, it will be transferred to your dealer on a Form 3.
What is a Form 4?
The ATF’s Form 4 is the form you must fill out to buy a Title II firearm. If you buy a silencer from your Class III dealer, you’ll fill out the Form 4. Once the ATF approves your application, you’ll receive the Form 4 back with a cancelled tax stamp on it, and then you can pick up your silencer from the dealer.
What is a Form 5?
The ATF’s Form 5 is used for the tax-free transfer of Title II firearms from a deceased person’s estate to their heirs. A Form 5 will be used to transfer the Title II firearms out of your trust once you die.
What is Form 5320.20?
You may not cross state lines with certain Title II firearms without BATFE approval. This the form you submit to them for approval. It can be sent by fax, and comes back much more quickly than the other ATF forms listed. Silencers do not need an approved Form 5320.20 before you cross state lines. Every other type of Title II firearm requires this form. If you plan to shoot just across the border all the time, you can get approval from the ATF for a year-long period. Just submit the 5320.20 once a year. This form must also be submitted if you’re moving out of state.
What is a CLEO?
CLEO stands for chief law enforcement official. It is the person in your area who can sign off on your individual ownership of Title II firearms. In many areas, the CLEO refuses to sign off on Form 1s or Form 4s. Some of them just don’t like the idea of civilians owning these highly regulated firearms. Others think that signing the forms will open them up to liability if something happens with the firearms. (This is not true, by the way.) Regardless, the CLEO is the person who often stands in the way of you acquiring Title II firearms. By using a trust to acquire Title II firearms, you bypass the requirement of CLEO sign-off. This isn’t a “loophole.” It’s just how trusts work under federal law.
What is a Class III/Class 3 dealer?
In order to sell regular (Title I) firearms, you must have a federal firearms license (FFL). An FFL (federal firearms licensee) who sells Title II firearms must pay an additional Special Occupational Tax (SOT). To deal in NFA or Title II firearms, that SOT is a Class 3. (To make Title II firearms, the dealer must be a Class 2 SOT.) In shorthand, dealers in Title II firearms are often called Class III dealers. If you want to own Title II firearms, you’ll probably quickly become familiar with your local Class III dealer. There are numerous such dealers across Kentucky.
What fees do I have to pay to own Title II firearms?
There is no “license” to own Title II firearms. If you can own a regular firearm, you can own a Title II firearm. Each time you buy or make a Title II firearm, you must pay the BATFE a $200 tax (except if you’re transferring an AOW, which is a mere $5 tax). Once the tax is paid, you do not have to pay any yearly fees or any other fees.
What is a tax stamp?
A tax stamp is an actual stamp that proves that you have paid the $200 tax to the BATFE in order to legally own a Title II firearm. It will be affixed to your Form 1 or Form 4 and “cancelled.” It’s important to keep it in a safe place.
What should I do with my tax stamp?
Your tax stamp is the proof that you have paid the required tax to the BATFE. It is very valuable document, and you should keep it in a safety deposit box or fire safe. Make a copy to keep with your firearm, just in case a law enforcement official ever wants to see it. If you lose your tax stamp, you could end up in real trouble. The BATFE is supposed to keep a registry of all Title II firearms and their current owners, but the registry has been proven to be incomplete and out-of-date. It’s important to keep your own proof that you legally own your Title II firearms.
Last edited by Aaron Baker; October 31, 2013 at 10:22 PM.
|October 31, 2013, 10:14 PM||#2|
Join Date: March 20, 2008
Location: Lexington, KY
What is the “trust loophole?”
Some people like to think of using trusts to acquire Title II firearms as a “loophole” because you’re not required to submit your fingerprints and photographs or get a CLEO sign-off when you use a trust to own Title II firearms. It’s not really a loophole, though. Trusts are simply a different, and completely valid, way to own Title II firearms. The BATFE has publicly stated that they support the use of trusts to acquire Title II firearms. If Congress really wanted to require CLEO signoff and fingerprints and photographs of trustees, they could.
What are the benefits of a trust?
Owning Title II firearms through a trust has many benefits. Some of those benefits come at the time that you're acquiring the Title II firearms, while others are enjoyed during your ownership. When you're acquiring Title II firearms using a trust, you do not need to submit fingerprints, photographs or get CLEO sign-off like you would if you were acquiring Title II firearms as an individual. Once you own Title II firearms with a trust, you can have multiple trustees listed on the trust. Each trustee is legally allowed to be in sole possession of the Title II firearms owned by the trust. Unlike individual ownership, where the registered owner is the only one who can possess the Title II firearm by himself, a trust allows a situation where a married couple can both be in possession of a Title II firearm without the other person around.
What if I want to change or add trustees or beneficiaries later?
NFA trusts will usually be a type of trust called a "revocable living trust." Revocable living trusts can be amended or modified at any time by you since you are the creator or "grantor." That means that you can use a document called an "amendment of trust" to change your trustees or beneficiaries.
Who should I list as trustees?
Trustees should live up to their name and be people you trust. It's a very serious decision to make, in fact. It's true that you, as the creator of the trust, can remove a trustee if necessary. However, while they are listed as trustees, these people have considerable power over the property in your trust. They could even do something as drastic as sell one of the Title II firearms in the trust! That's why I recommend that my clients only list people as trustees that they absolutely trust to behave responsibly. Usually that's limited to spouses and close family members, but ultimately it is the client's decision, and if you trust your best friend like a brother, he can be listed as a trustee as well. All trustees can legally possess the Title II firearms in the trust without you present.
What makes using a trust superior to using a corporation to own Title II firearms?
Trusts have clear benefits over individual purchases of Title II firearms. Corporations are another possible way to own Title II firearms as well. Trusts are better than corporations for most people because of the additional difficulties that attend owning a corporation. Once you create a trust, in many states, it does not have to be registered with anyone. You can create and modify the trust at will without any government interference. Corporations must be registerd with the state, file annual reports, and maintain a registered agent and registered office. Simply put, trusts are simpler and allow the same benefits as corporations.
Should I submit my tax stamp application as an individual or using a trust?
Once you've decided you want to own NFA items, there are a couple different ways to go about it. Unless you're inheriting one on a Form 5 (which is outside the scope of this guide), you will either need to file a Form 1 (Application to Make a Firearm) or Form 4 (Application to Transfer a Firearm) with the ATF. You fill out the form, send it to the ATF along with a check for $200 (or $5 for an AOW transfer) and then play the waiting game. It can take anywhere from a few weeks to a year for the ATF to approve your form and send you a tax stamp. An average of 6 months or more seems to be a good guess these days, but it can vary widely. The good news is that if you can pass the background check to buy a regular gun, there should be no reason for the ATF to deny you an NFA firearm. If you are denied for whatever reason, you will receive your $200 back.
Normally, when an individual wants to buy an NFA item, he or she must submit paperwork that includes photographs, fingerprints and a form signed by the Chief Law Enforcement Official (CLEO) in their area. While the photographs and fingerprints are fairly easy to submit, many CLEOs refuse to sign off on NFA paperwork. Some are under the mistaken impression that doing so opens them up to legal liability for any subsequent actions you take with the firearm, while others simply don't want “evil” machine guns or silencers in their area. However, not all applications for NFA items require photographs, fingerprints and a CLEO sign-off. Corporations and trusts do not have to submit that portion of the paperwork. Maintaining a legal corporation is complicated and unnecessary if you simply want to own NFA items, but the trust is a perfect workaround.
It has become somewhat fashionable for trusts to be referred to as a “loophole” in the NFA, but they're not. They are simply a different way to own NFA items. Trusts have another benefit as well. Anyone named as a trustee can legally be possession of an NFA item registered to the trust. This is the perfect solution for married couples who want both spouses to be able to possess the firearm individually, since normally the only person who can possess an NFA item is the registered owner. (He or she can allow others to use it while he or she is present, but NFA items cannot be “loaned out” to friends.) Many people will also list other family members or close friends as trustees so that several people can “share” an NFA firearm without breaking the law.
Tell me more about trusts.
Trusts aren't a new thing. They're an estate-planning device whose history can be traced through Roman law, England during the Crusades, and into the modern era. A trust is basically a relationship between three parties. The first party is the grantor (also known as the creator or settlor), which is the person making the trust. The second party is the trustee, who manages the trust. The third party is the beneficiary, who receives the benefit of the property placed into the trust. For instance, a father may, as a grantor, place some money into a trust for his son, the beneficiary, and that money may be managed by a bank, the trustee, for the son's benefit.
When it comes to NFA trusts, though, things are a little different. We still need a beneficiary to create a legal trust, but holding property for their benefit isn't really the reason we're creating a trust. One of the issues that a properly-drafted NFA trust must address is allowing the trustee (you) to use the trust property (the NFA items) without creating liability to the beneficiary for depreciating their value. Many people are tempted to make themselves the sole beneficiary of their NFA trust, but that results in an illegal trust, which is a problem for the ATF. Simply put, you can't legally place property in trust for yourself and also manage the trust. However, the trust is legal as long as there are other parties who act as trustees, beneficiaries or both. Since most people want at least one other trustee, and often list a child or other relative as the beneficiary, it is easy to create a valid trust.
While a trust currently allows you to bypass CLEO signoff, fingerprints and photographs, and there are people who need to use them because of uncooperative CLEOs, the main benefit of a trust is that you can name additional trustees besides yourself. That allows other people to be legally in possession of the trust's NFA items without the grantor being present.
What should I name my trust?
You can use (almost) any name you want. The name must end in the word “trust.” The ATF will also not accept trust names that start with the word “the.” Beyond that, use anything you like. However, remember that whatever you decide will have to be engraved on any firearms that you build on a Form 1, so keep it somewhat short.
My trust follows the format “Lastname Firearm Trust” but you can use just your initials or even a silly name.
These are acceptable names:
There are a number of forms that you should be familiar with if you want to own NFA firearms. When it comes to the tax stamp applications, be aware that the ATF will only accept forms that are printed front-and-back on a single sheet.
Form 5320.1 – This is commonly known as the “Form 1” and is the application you file if you're making your own NFA item, such as a short-barreled rifle.
Form 5320.4 – This is commonly known as the “Form 4” and is the application you file if you're buying an NFA item from another person. You can file the Form 4 yourself if you are buying from another private individual in Kentucky. It's more likely that you'll be buying from a dealer, and they will probably be happy to assist you in filling out this form. If you need help with the form, consult the instructions below.
Form 5320.20 – This is the form you must submit if you want to take your NFA items across state lines. You must submit this form and receive approval before you transport the items. The form can be faxed if necessary for expedited approval. Simply follow the instructions provided with the form. You need to use this form for all NFA items except silencers/suppressors. Suppressors can cross state lines without a form. The ATF is pretty reasonable when it comes to this form. If you go shooting just across the border all the time, you can even get a form approved for a year-long timespan.
Form 5330.20 – This form must be submitted along with your Form 1 or Form 4. It is simply a certification that you are not a non-immigrant alien, and is required by the ATF. The ATF used to require this form to be submitted for both trusts and individuals, but lately has clarified that the certification is not required for trusts, at least when submitted electronically on the eForms site.
Each of these forms has instructions printed on them, or on the accompanying pages. They're pretty straightforward, with the exception that the Form 1 (or Form 4) can be confusing when you're using a trust.
Last edited by Aaron Baker; October 31, 2013 at 10:22 PM.
|October 31, 2013, 10:15 PM||#3|
Join Date: March 20, 2008
Location: Lexington, KY
How do I fill out a Form 1 (paper version) if I'm using a trust?
The blanks on a Form 1 are numbered, so starting with the first numbered section, here is how you fill in the form for your trust:
1. Check box A for tax paid. That means that you're including a check made out to the Department of Justice when your form is submitted.
2. Check the box for “Corporation or Other Business Entity” because that's what a trust is.
3. Skip 3a and put the name of your trust, along with your address in box 3b, like this: “Lastname Firearm Trust, 123 Fake Street, Anytown, KY 12345”. In 3c, put your real physical address if you get your mail at a PO Box. In 3d, put your county and in 3e, your phone number.
4. In 4a, you put the name and location of original manufacturer of the firearm. If that's you because you're making a silencer from scratch, put your name, city and state. If you're building an SBR off an AR15 lower receiver, then put the name and city/state of the lower receiver's manufacturer, like “Smith & Wesson, Springfield, MA”. In 4b, you put the type of firearm: short-barreled rifle, short-barreled shotgun, silencer, etc. In 4c, put the caliber, gauge or size. For instance, .223 or 12 gauge. You can put all the calibers you might want to use for an AR15-based SBR, but really only the “original configuration” caliber is necessary. In 4d, put the model name. You can make it up for a scratch-build, or put down the model of gun you're modifying (such as “M&P15”). In 4e, you put the barrel length for SBRs or SBSs. Again, the original configuration length is all that is necessary, but you can also list multiple lengths. Do not put “multi” for this or for caliber, as the ATF no longer accepts that answer. In 4f, put the overall length for the original configuration. A rough estimate is fine; or adjustable or folding stocks, use the extended length. In 4g, put the serial number. This is the original serial number for a modified gun, or one you make up if you're doing a build from scratch. 4h can normally be left blank. 4i requires a response. I recommend “all lawful purposes” as this is appropriate and has never been known to be disapproved. You might get denied if you put “none of your business” or “to kill zombies.” Then again, you might not. Play it safe anyway. Unless you're reactivating a deactivated gun and know what this means, mark 4j as “no.”
5. You don't have an FFL, so leave this blank.
6. You also don't have an SOT status, as this is a special status for FFLs who make NFA items, so leave this all blank.
7. Sign your signature.
8. Print your name, then put a comma and write “trustee,” like this: “Joe Blow, trustee.”
9. Put today's date.
10. Moving to the back of the form, read and answer all the sub-questions for 10. These are similar to the questions you answer when you fill out the form to buy a gun at a gun store, and your answers should all be no. (But answer honestly!)
11. Again, answer honestly, but the answers should all be “no.”
12. Trusts do not need to submit photographs, so this section is left blank.
13. Trusts also do not need a law enforcement certification, so this section is left blank.
That is all there is to it. Submit your completed Form 1, both printed front-and-back and both signed in original ink, your form 5330.20 (non-immigrant alien certification), a check for $200, and a copy of your trust documents to the ATF by mailing it to: National Firearms Act Branch, Bureau of Alcohol, Tobacco, Firearms and Explosives, 244 Needy Road, Suite 1250, Martinsburg, WV 25405. You should make a copy of everything before you send it off.
How do I fill out a Form 1 (electronic version) if I'm using a trust?
The ATF has had an electronic submission system for importers of firearms before now, but recently it has been expanded to allow electronic submission of the Form 1. This is only available to people using a trust because individuals still must submit fingerprints and photographs and that cannot be done electronically. There’s no guarantee that using the eForms system will make your application move any faster, but it can’t hurt and does involve mailing less paper.
To use this system, you will need to scan your trust documents into a PDF format. Make sure that the files are fairly small, since no file larger than 3mb can be uploaded. There are PDF file size reducers available online if your scans are too big.
The first step to this process is to sign up for the eForms system as a new user. Follow these steps:
How do I fill out a Form 4 (paper version) if I'm using a trust?
This is a form that should be filled out by your dealer, although he may give you the two copies to mail to the ATF yourself (along with your check). If your dealer seems confused, or if you’re doing a Form 4 transfer between two individuals, follow the instructions below. Just like the Form 1, the blanks on a Form 4 are numbered, so starting with the first numbered section, here is how to fill in the form:
1. Check the box for $200 unless you’re transferring an AOW, which is only a $5 tax.
2. 2a is your trust’s name because you’re the Tranferee. Put the name of your trust, along with your address the box, like this: “Lastname Firearm Trust, 123 Fake Street, Anytown, KY 12345”. In 2b, put your County name.
3. 3a through 3d is where the transferor, usually the dealer, puts their name, address and telephone number, as well as some other information.
4. In 4a, you put the name and location of the manufacturer of the firearm, like “Smith & Wesson, Springfield, MA”. In 4b, you put the type of firearm: short-barreled rifle, short-barreled shotgun, silencer, etc. In 4c, put the caliber, gauge or size. For instance, .223 or 12 gauge. In 4d, put the model name, such as “M&P15”. In 4e, you put the barrel length for SBRs or SBSs. In 4f, put the overall length, including for suppressors. In 4g, put the serial number. 4h can normally be left blank.
5. You don't have an FFL, so leave this blank.
6. You also don't have an SOT status, as this is a special status for FFLs who make NFA items, so leave this all blank.
7. This is where the transferor puts his FFL if he is a dealer. If the transferor is a private individual, leave this blank.
8. This is where the transferor puts his SOT if he is a dealer. If the transferor is a private individual, leave this blank.
9. If you want to be able to call to check the status of your transfer, rather than begging the dealer to check on it for you, make sure “I DO” is circled here. Otherwise, the ATF will not talk to you, only the dealer.
10. This is where the transferor, usually a dealer, signs.
11. This is where the dealer prints his name.
12. Put today's date.
13. Moving to the back of the form, read and answer all the sub-questions for 13. These are similar to the questions you answer when you fill out the form to buy a gun at a gun store, and your answers should all be no. (But answer honestly!)
14. Again, answer honestly, but the answers should all be “no.”
15. This is where you need to put your trust’s name, then in the second blank, put “all lawful purposes.” When you sign in this box at the bottom, put a comma and write “trustee,” like this: “Joe Blow, trustee.” Then put the date as well.
16. Trusts do not need to submit photographs, so this section is left blank.
17. Trusts also do not need a law enforcement certification, so this section is left blank.
For a Form 4, you must submit the same documentation that you would submit for a Form 1. Submit two copies of your completed Form 4, both printed front-and-back and both signed in original ink, your form 5330.20 (non-immigrant alien certification), a check for $200, and a copy of your trust documents to the ATF by mailing it to: National Firearms Act Branch, Bureau of Alcohol, Tobacco, Firearms and Explosives, 244 Needy Road, Suite 1250, Martinsburg, WV 25405.
How can I find out the status of my tax stamp application?
You can call the ATF at 304-616-4500 to ask about the status of your application as often as you like. The people who answer the phone are call center employees and can look up your status if you have the serial number of the NFA item available for them. Be nice to these people—they're just doing their job. If you need to speak to the actual examiner who is handling your application, the front-line people can transfer you. Try not to bug the examiners unless you really need to, as they are working as fast as they can to approve applications and less interruptions mean more work!
Once your check is cashed, you will probably be told that your application is in a “pending” status until it is actually approved. Once it's approved, they will tell you that it has been approved if you call. More than likely you'll just get your stamp in the mail first.
In some cases, the examiner will need additional information or find a problem with your application. In that case, they will send you a letter explaining the problem and telling you that if you don't respond in a certain amount of time, your application will be denied. If you can respond, do so immediately by mail or fax. (You can also call and speak to the examiner if necessary.) If you're confused by what they want, you should consult your attorney right away. Finally, just remember that the people answering the phones at the ATF and the behind-the-scenes examiners are generally nice folks who just happen to live in West Virginia and work for a government bureaucracy. If you're nice to them, they will usually try to be helpful.
Last edited by Aaron Baker; October 31, 2013 at 10:24 PM.
|October 31, 2013, 10:17 PM||#4|
Join Date: March 20, 2008
Location: Lexington, KY
What happens when I get my stamp?
Once you finally get that envelope in the mail from the ATF, you'll probably be pretty excited. There will be an actual stamp pasted onto your original Form 1 (or Form 4). If you submitted a Form 1, you may now legally assemble your NFA item. For a short-barreled AR15, this will be when you can finally legally put a short-barreled upper onto your registered lower receiver. Make a copy of the form with the stamp on it to keep with the gun, and put the original in a safe place. If you submitted a Form 4, that means that you can now pick up your NFA item from the Class 3 dealer where you paid for it all those months ago. Once you have the stamp in hand, you can enjoy your NFA items to your heart's content. Go shoot that SBR or suppressor, and let as many other people as you can share in your joy. Part of the fun of owning NFA items is showing them off to others. Just remember that you can let other people use your NFA items, but you must be present at the time. No loaning them out. If you are away from your NFA item, it should be stored securely so that no one who is not listed as a trustee of your trust can “possess” it outside of your presence. A good secure gun safe is probably not a bad idea. Only trustees of the trust may possess the trust's NFA items.
How old do you have to be to own an NFA firearm?
In order to buy an NFA firearm from a Class III dealer, you must be 21 years old. However, if you want to make an NFA firearm, you only need to be 18 years old. You may also buy an NFA firearm from another private party in your same state if you're 18 years old.
What does “making” an NFA firearm mean?
Obviously if you buy an NFA firearm from a dealer, you're not “making” or “manufacturing” anything. But what about if you want to submit a Form 1 and build an NFA firearm? Well, that makes you a manufacturer, regardless of whether you're building a suppressor or rifle receiver from a hunk of raw metal or just shortening the barrel on a rifle you already own.
For instance, if you have a complete AR15 (one of the most popular rifles to make into a short-barreled rifle) or even a stripped AR15 receiver, and you want to make an SBR, then you're going to be considered the manufacturer. You're the person who is turning the Title I firearm into a Title II firearm. Just because someone else originally made it and put a serial number doesn't mean you're not the manufacturer of the SBR.
Can I build my AR15 as a pistol while I'm waiting for my short-barreled rifle tax stamp?
Yes. There's some things to be aware of, though. The first is the “first-a-rifle, always-a-rifle” rule. (See the once-a-rifle, always-a-rifle question.)
Let's assume you're starting with a stripped AR15 receiver. You can build this into a pistol using the same upper receiver that you're going to use on your SBR. What makes an AR15 a pistol is that you don't have a stock attached to it. You are free to use a dedicated pistol buffer tube, or you can use a carbine or rifle buffer tube. The ATF has said that any buffer tube option is acceptable for a pistol build.
A note of caution though... if you want to avoid “constructive possession” of an unregistered short-barreled rifle, you should not have a spare stock that can fit on the buffer tube that you've got your pistol. The best way to do this is to only buy the buffer tube you need for your build, but not buy the stock until your tax stamp arrives.
What's the once-a-rifle, always-a-rifle rule?
The full answer to this question has a lot of history behind it. The ATF used to take the position that if a firearm receiver had ever been configured as a rifle, it could not be configured as a pistol. The reasoning has to do with the definition of “short-barreled rifle” under the National Firearms Act. The definition of short-barreled rifle includes the language “any weapon made from a rifle (whether by alteration, modification, or otherwise) if such weapon, as modified, has an overall length of less than twenty-six inches.”
Of course, if you take a firearm that came from the factory as a rifle and you turn it into a “pistol” by removing the buttstock and shortening the barrel, then it's going to be a weapon made from a rifle with an overall length of less than 26 inches. However, that rule didn't work the other direction. If you had a pistol that you put a 16”+ barrel on and added a buttstock to make it a rifle, that was just fine. Once you had made that rifle, though, the ATF said you couldn't turn it back into a pistol. Understandably, this became known as the “once-a-rifle, always-a-rifle” rule.
Everything started to change when Thompson Contender decided to offer a kit which included a receiver, a pistol stock, a rifle stock, a short barrel and a long barrel. Obviously it would be possible to have configured this kit as a short-barreled rifle by putting the rifle stock and short barrel on the receiver. Thompson Contender specifically included instructions with the kit not to do this. The real problem was that the ATF took the position that once the end user had made the kit into a rifle, he could never make it into the pistol configuration. Thompson Contender took the ATF to court and the case went all the way to the United States Supreme Court. The Supreme Court decided that the once-a-rifle, always-a-rifle rule was silly and that Thompson could offer the kit without putting users in “constructive possession” of a short-barreled rifle.
For a while after the loss in the Supreme Court, the ATF insisted that the court's ruling only applied to the Thompson Contender kit. Eventually, though, they loosened that stance and backed off the once-a-rifle, always-a-rifle rule. The new rule can be better described as “first-a-rifle, always-a-rifle.” Under the new interpretation, the ATF says that as long as a firearm reciever was configured as a pistol BEFORE it was ever made into a rifle configuration, it can be freely switched back and forth.
The specific firearm that this is most often applied to is the AR15. Stripped receivers are extremely common, and they can be built into both pistols and rifles.
It is very important to note that whether a hunk of metal is a pistol, a rifle or a bare receiver is only dictated by its actual physical configuration and whether that configuration meets the definition under federal law. This question arises most often in relation to stripped AR15 receivers. People worry about what is stamped on the side of the receiver (“pistol” marked receivers versus not), what the manufacturer put on their paperwork (pistol, rifle or receiver) and what the dealer marked on the 4473 (pistol, rifle or receiver). However, none of these things determine whether a stripped receiver can be built into a pistol or rifle. If you have a stripped receiver that was never built into a finished firearm, you are legally allowed to build either a pistol or a rifle. If you have a receiver that came from the factory as a completed rifle, then it can only ever be legally configured as a rifle. If you have a receiver that came from the factory as a pistol, then it can be configured as either a pistol or a rifle.
The end result of all of this discussion as it relates to AR15 stripped receivers is that if you have a stripped receiver, it's a good idea to build it as a pistol first, because that means you can legally swap back and forth between pistol and rifle configurations.
What is constructive possession?
Constructive possession is a legal theory whereby someone can be charged with being in possession of contraband despite not having actual physical control or custody of it. The application of the theory to NFA firearms usually means that a person has all the parts necessary to build an unregistered NFA firearm, but has not actually constructed it. One should understand that the term “constructive” is not used in the sense of constructing a firearm. It's a legal term of art that is opposed to “actual” possession.
One of the most common discussions of constructive possession relates to AR15 short-barreled rifles. It is possible to build a legal AR15 pistol with a short barrel. The ATF has stated that any buffer tube may be used to build such a pistol, including both carbine and standard rifle buffer tubes. The potential issue is that a buttstock may be easily attached to either type of tube. If a person were to be in possession of both an AR15 pistol with a carbine buffer tube and a carbine buttstock that could be attached, the ATF could potentially charge that person with constructive possession of an unregistered short-barreled rifle. Similarly, possessing a short-barreled upper receiver and a non-registered AR15 lower receiver with a buttstock could result in a charge of constructive possession.
The general rule is that if you possess parts that could be built into an unregistered NFA firearm, they must have another lawful purpose in order to avoid criminal liability under the constructive possession theory. Thus, you should have have possession of a short-barreled upper receiver for an AR15 unless you also own a registered lower receiver or a pistol-configured lower receiver. Or, if you have a AR15 pistol and a buttstock that will fit on its buffer tube, you must also have another AR15 rifle that will accept the buttstock.
Of course, in reality, the ATF has very little reason to be looking closely at any individual AR15 owner. Unless you're already on the ATF's radar for much more deviant behavior, you're unlikely to end up charged with the constructive possession of an NFA firearm.
Can I change the caliber of my SBR?
Yes. When filling out your Form 1, you are asked for a caliber. The ATF used to accept the entry “multi” but it now insists on a specific caliber. Some people list multiple calibers, but this isn't necessary. Just list the caliber of your “primary” upper receiver.
The big question is whether this is a permanent change or a temporary one. If you have the upper receiver that meets the specifications that you originally listed on your Form 1 and don't plan to get rid of it, you're free to swap out uppers in any other caliber or length you want. The ATF doesn't even want to know about these swaps as long as you can swap back to the “original” specification.
If you're making a permanent caliber or length change and selling your original upper receiver parts, then the ATF would like to be informed of the change. To be absolutely clear, there is no legal requirement to notify the ATF. They do request, however, that you notify them of permanent changes so that they can keep the NFA registry up to date. I see no harm in complying with this wish of theirs. There's no form to fill out for this notification, so just write the ATF's NFA Branch a letter that lists the new caliber and length. They'll send you a thank you letter after a few months.
What happens if there's a mistake on my Form 1 or Form 4 and the ATF sends me a “correction” letter?
Mistakes happen. For example, you might list “multi” as the caliber on your Form 1 and the ATF doesn't accept that answer anymore. Or you might forget to sign both original forms in ink. When you receive the ATF's letter, just provide them with the information they need or make the corrections they've requested. Once your corrections are received, you don't go back to the end of the line. Instead, they will continue processing your form and you should get your tax stamp pretty quickly.
What are the rules for engraving?
If you build a firearm on a Form 1, there is certain information that must be engraved on the firearm. What you as the manufacturer have to add depends on whether you're starting from scratch or “making” from an already-existing firearm.
If you're making from scratch, you must engrave:
There are requirements for height and depth of engraving. The depth requirement applies to ALL of the information that's being engraved and is .003 inches deep minimum. The height requirement ONLY applies to the serial number, and it's 1/16 of an inch minimum.
This may be done by casting, stamping or engraving.
There are different schools of thought on when to engrave. The engraving does not have to be done until the time of manufacture, which you will be doing after you get the approved tax stamp. However, some folks suggest doing the engraving BEFORE you submit the tax stamp application. The benefit to this is that if your engraver screws up your receiver, then you won't be out of luck—you can choose a different receiver for engraving before you submit your tax stamp application.
As for where to engrave, most people engrave their receivers. However, the rules technically allow the manufacturer's name, city and state to be engraved on the barrel. On an AR15, that means all the barrels on the uppers you use would have to be engraved, which would cost more. On a regular rifle, it might make a bit more sense.
Can I put a vertical foregrip (VFG) on my...?
You can put a vertical foregrip on a rifle without any legal problems at all.
The ATF takes the position that you cannot put a vertical foregrip on a pistol, including an AR15 pistol, without registering the firearm as a Any Other Weapon.
However, if the overall firearm length is 26” or greater, but it does not have a buttstock, then it's not a “pistol” to begin with, it's a “firearm” and you may put a vertical foregrip on it. (There are certain AR15s that are marketed this way from some manufacturers.)
The Magpul AFG (angled foregrip) is not a vertical foregrip according to the ATF, so you may install it on a rifle, pistol or other firearm without any legal problems.
When is a short-barreled rifle (SBR) a short-barreled rifle (SBR)?
An SBR is only an SBR when it's an SBR.
If it has a 16" upper, it's not an SBR.
Once a lower receiver has been registered as an SBR, you can legally put a short barrel upper on it. Then it's an SBR. You can also put a 16" upper on it, and then it's not. Then you can put the short barrel upper back on it and it's an SBR again.
If you want to sell it as an SBR, then new buyer has the pay for a tax stamp. If you want to sell it as a Title I/regular rifle, then you can put an 16" upper on it and just sell it as one. The ATF prefers that you tell them so they can remove it from the registry, and it's a good idea, but it's not required. The new owner can only configure it as an SBR if he paid for the stamp when it was transferred, or registered it again later.
Last edited by Aaron Baker; October 31, 2013 at 10:25 PM.
|November 1, 2013, 06:12 PM||#5|
Join Date: December 15, 2003
Location: WA, USA
Last edited by Ranb; November 1, 2013 at 06:23 PM.
|November 4, 2013, 12:08 AM||#7|
Join Date: July 1, 2008
What do we need to know about the validity of a trust created in one state once the grantor and NFA items are in another state? You mentioned that suppressors can be moved to another state without ATF approval so is it sufficient to amend the address on the trust and nothing else? In other words, no need to notify the ATF of the change of address if you only own suppressors? Of course, all of this assumes that suppressors are legal in the new state.
|November 7, 2013, 11:14 PM||#8|
Join Date: March 20, 2008
Location: Lexington, KY
RanB makes a valid point about the difference in terminology between "manufacturer" and "maker."
As for 1858's questions:
Trusts created in one state are valid in any other state. Your trust will generally be governed by the state law of the state where the trust was formed. If you move to another state, even permanently, you still have a valid trust.
To move an NFA firearm interstate, you must fill out Form 5320.20 and have it approved by the ATF BEFORE you move the firearms across state lines. That applies to temporary trips or permanent moves that cross state lines. The form is not necessary for suppressors or AOWs, but is required for all other NFA firearms.
Form 5320.20 is NOT a change of address form. If your interstate move is permanent, then it will serve as permission AND a notification of change of address to the ATF for all NFA firearms except suppressors and AOWs. However, if you move within the same state, then you don't use the 5320.20 to inform the ATF of an address change. That would be an improper use of the form. You should also not use the form to notify the ATF of an interstate move with a suppressor or AOW.
Instead, if you move within the same state with any NFA firearm or move to a new state with a suppressor or AOW, then you should simply send a letter to the ATF with your new address. I cannot cite any particular law that requires you to notify the ATF, but it's a good idea to help them keep the NFA registry up-to-date.
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