ATF sharing information with local police.

Texasgrillchef · Jan 2, 2020

If local police want information from ATF about individuals possible ownership of NFA items, without it being an investigation into a crime, and otherwise have no credible need or probable cause to need that information, and the ATF provides that information to the local police, is this or is this not a violation of your 5th &/or 14th amendments?

Please state any federal &/or state case law or court rules to support your case for or against this being a violation of your 5th &/or 14th amendments.

D.B. Cooper · Jan 2, 2020

Texasgrillchef said:
If local police want information from ATF about individuals possible ownership of NFA items, without it being an investigation into a crime, and otherwise have no credible need or probable cause to need that information, and the ATF provides that information to the local police, is this or is this not a violation of your 5th &/or 14th amendments?

Please state any federal &/or state case law or court rules to support your case for or against this being a violation of your 5th &/or 14th amendments.

To begin, I'm no expert on the Constitution.

First of all, it's only a violation of the 14th Amendment (I assume you are referring to the equal protection clause) if your case is handled differently from the vast majority of other cases and you can prove that discrimination was a motivating factor.

Second, I don't feel the scenario you describe would be a violation of the 5th Amendment because you're not being held to answer for a crime, you're not being tried for the same crime a second time, and you're not being forced to testify against yourself, neither are you being deprived of property.

I don't even think you can call it a violation of the 4th Amendment's prohibition on unreasonable searches because, again, in the scenario you describe, nothing of yours or your person is being searched.

Furthermore, I wouldn't be surprised if ATF records weren't considered public information or a public record subject to FOIA and thereby accessible to anyone who submits a FOIA request for public records.

While a conspiracy theorist may consider such a scenario a prelude to an unconstitutional gun confiscation, until a local government actually confiscates a gun illegally, I don't think you would have any recourse.

Conelrad · Jan 2, 2020

NFA data for private owners is considered tax data, not like being an 'occupational taxpayer' (class 2 or 3 dealer in business, with bound books subject to random inspections during business hours).

If there is a reason to query the owner of said NFA weapon, a warrant has to be issued to compel same. Of course, one can talk with them, but I wouldn't.

If an NFA weapon is transferred from you on a form 4, you have no official vehicle to find out who has it down the road.

Conelrad

D.B. Cooper · Jan 2, 2020

Conelrad said:
NFA data for private owners is considered tax data, not like being an 'occupational taxpayer' (class 2 or 3 dealer in business, with bound books subject to random inspections during business hours).

If there is a reason to query the owner of said NFA weapon, a warrant has to be issued to compel same. Of course, one can talk with them, but I wouldn't.

If an NFA weapon is transferred from you on a form 4, you have no official vehicle to find out who has it down the road.

Conelrad

Interesting. I wasn't thinking of it in the realm of tax law. Yeah, that would be confidential and, therefore, subject to the 4th Amendment. I think that's the fastest ever that one of my arguments has been blown out of the water. LOL

AlexanderA · Jan 2, 2020

Conelrad said:
NFA data for private owners is considered tax data,

"Tax information" is generally confidential. But tax information can be used for tax administration purposes, if not for general law enforcement purposes. There could be sharing of information between the ATF and the IRS. For example, if someone sells a machine gun, there's a good chance that it has appreciated in value, and that there's a huge capital gain involved. The ATF would have a record of the sale from the Form 4 being filed. It would be a simple matter for the ATF to send all Form 4s for MGs over to the IRS, which would then run an audit program to see if the capital gains have been reported.

I'm not saying that such a coordinated audit program is in place, but it could be.

Tax information can also be shared with state tax authorities.

In Virginia, the state already has a parallel system for state registration of machine guns, so that wouldn't even be necessary. (Interestingly, in Virginia, the state MG registry is not online for easy access by patrol officers, for example, during traffic stops. The carry permit data base is.)

Texasgrillchef · Jan 2, 2020

AlexanderA said:
"Tax information" is generally confidential. But tax information can be used for tax administration purposes, if not for general law enforcement purposes. There could be sharing of information between the ATF and the IRS. For example, if someone sells a machine gun, there's a good chance that it has appreciated in value, and that there's a huge capital gain involved. The ATF would have a record of the sale from the Form 4 being filed. It would be a simple matter for the ATF to send all Form 4s for MGs over the to the IRS, which would then run an audit program to see if the capital gains have been reported.

I'm not saying that such a coordinated audit program is in place, but it could be.

Tax information can also be shared with state tax authorities.

In Virginia, the state already has a parallel system for state registration of machine guns, so that wouldn't even be necessary. (Interestingly, in Virginia, the state MG registry is not online for easy access by patrol officers, for example, during traffic stops. The carry permit data base is.)

I don’t remember any information put on any of my Form 4’s for the amount that was paid (if any) on a Form 4. So without the sales price info being put on it, it would be impossible to figure out Capitol gains.

AlexanderA · Jan 2, 2020

Texasgrillchef said:
I don’t remember any information put on any of my Form 4’s for the amount that was paid (if any) on a Form 4. So without the sales price info being put on it, it would be impossible to figure out Capitol gains.

Form 1 and Form 4 are tax-paid forms (the $200 making / transfer tax). Other forms, such as Forms 3, 5, and 10, establish exemption from the tax. So all these ATF forms are considered tax forms and come under the same confidentiality rules -- and the exceptions to them -- as income tax forms. The point being that the ATF could share the forms with the IRS.

The amount that was paid for the gun doesn't need to be on the ATF form in order to initiate an IRS audit. The IRS auditor would pull up the transferor's income tax return for the year of the transfer, and see if any transaction was reported. If not, the auditor would set up a capital gain tax liability based on average selling prices for that model gun. It would then be up to the transferor to prove the actual amount received, as well as his cost basis in the gun. (If no cost basis can be shown, the cost basis is assumed to be zero -- meaning that the entire amount received, or assumed to have been received, represents taxable gain.)

In IRS audit cases, the burden of proof is on the taxpayer, once the IRS makes its prima facie case.

Again, I have no personal knowledge that the ATF and IRS are actually conducting such joint audit operations. They are perfectly plausible, though. The wise course for someone selling a machine gun is to report the gain on his income tax return. Or, not to sell at all, let the gun go into his estate, and let his heirs have the benefit of a stepped-up basis to the FMV at the date of death. (No gain on a sale, in that case.) (But MGs held in a trust don't get a stepped-up basis.)

RickD427 · Jan 2, 2020

Conelrad said:
NFA data for private owners is considered tax data, not like being an 'occupational taxpayer' (class 2 or 3 dealer in business, with bound books subject to random inspections during business hours).

If there is a reason to query the owner of said NFA weapon, a warrant has to be issued to compel same. Of course, one can talk with them, but I wouldn't.

If an NFA weapon is transferred from you on a form 4, you have no official vehicle to find out who has it down the road.

Conelrad

Sir,

Can you provide an authoritative citation for both of these assertions? I believe that you are in error on both points.

Tax "Returns" and "Return Information" are confidential (with specific exceptions not including law enforcement agency inquiries) under 26 USC 6103. The National Firearms Act is also codified within Title 26, but when you look at the definitions attached to "Return" and "Return Information" only the amount of tax paid to register or transfer an NFA is protected under the statute. The fact than a tax was paid, or other contents of the NFA record, are not protected by that statute.

Is there some other source of protection that you believe applies? If so please identify it.

Additionally, please note that BATF's FOIA Compliance folks indicate that NFA records are provided to other law enforcement agencies for use in prosecuting NFA violations.

RickD427 · Jan 2, 2020

Texasgrillchef said:
If local police want information from ATF about individuals possible ownership of NFA items, without it being an investigation into a crime, and otherwise have no credible need or probable cause to need that information, and the ATF provides that information to the local police, is this or is this not a violation of your 5th &/or 14th amendments?

Please state any federal &/or state case law or court rules to support your case for or against this being a violation of your 5th &/or 14th amendments.

There is no violation of the Fifth Amendment. The Fifth Amendment protects against you being forced to be a witness against yourself in a criminal matter. When you properly and truthfully complete the source records for the NFA, you are not implicating yourself in a "criminal matter."

There is no issue with the Fourteenth Amendment. The Fourteenth Amendment imposes several restrictions on the states. A state "shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." No such law is made or enforced when a state agent makes an NFA inquiry (Please also see my above posting about the tax privacy issue). The Fourteenth Amendment also provides "Due Process" and "Equal Protection" requirements to the states. Since there is no Constitutional right to privacy in the NFA records, there is no "Due Process" violation. So long as the law is equitably enforced, there is no "Equal Protection" violation.

entropy · Jan 2, 2020

Texasgrillchef said:
If local police want information from ATF about individuals possible ownership of NFA items, without it being an investigation into a crime, and otherwise have no credible need or probable cause to need that information, and the ATF provides that information to the local police, is this or is this not a violation of your 5th &/or 14th amendments?

Please state any federal &/or state case law or court rules to support your case for or against this being a violation of your 5th &/or 14th amendments.

This isn't Constitutional Law 101. I'll pass.

Spats McGee · Jan 4, 2020

D.B. Cooper said:
To begin, I'm no expert on the Constitution.

First of all, it's only a violation of the 14th Amendment (I assume you are referring to the equal protection clause) if your case is handled differently from the vast majority of other cases and you can prove that discrimination was a motivating factor.

You're thinking of the Equal Protection clause, which is certainly there, but there's a whole lot more to the A14 than that.

Framers said:
Amendment XIV

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

D.B. Cooper said:
Second, I don't feel the scenario you describe would be a violation of the 5th Amendment because you're not being held to answer for a crime, you're not being tried for the same crime a second time, and you're not being forced to testify against yourself, neither are you being deprived of property.

As with the A14, the A5 has more than that. The Self-Incrimination clause is undoubtedly the best-known clause, but the A5 actually does have its own Due Process clause, among other things.

Framers said:
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

748 · Jan 4, 2020

If the nfa owner isn't breaking a law it should only be the business of the atf.
I talked to an inspector before and they said to treat your nfa weapon information like a social security number, especially on form 1 stuff.

ATF sharing information with local police.

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