dogtown tom said:
Form 4473 Question 11a asks
"Are you the actual transferee/buyer of the firearm listed on this form? Warning: you are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you....
While it's great that both fill out the 4473 and passed the background check, X paid for both guns......meaning Y IS NOT the actual buyer of his firearm......right?...
Sorry, but that's an incomplete, and inaccurate, analysis. If Y keeps the gun, i. e., X was either paying for it as a gift to Y or X was loaning Y the money for the gun, Y is the actual transferee. Y would be the actual transferee because he is taking possession of the gun with the intention of keeping it for himself.
The problem would arise if Y were taking possession of the gun for the previously arranged purpose of transferring it to X. Under such circumstances Y would not be the actual transferee, but rather would be taking possession of the gun as X's agent. And thus, in that situation X would be the actual transferee/purchaser.
This is a subtle and technical matter which needs to be analyzed using law-of-agency principles.
dogtown tom said:
...A dealer may suspect that buyer X is attempting to avoid the Multiple Sale of Handgun Report required under federal law by having his buddy Y sign for the other handgun.
Husband and wife...........might not arouse my suspicion.
Two guys unrelated to each other...................no sale from me.
But that is the entirely practical way a dealer is likely to view the situation and why a dealer might very well baulk at the deal. And that would be his prerogative.
The thing is that, as you point out, it could be a straw purchase. Whether or not it is depends on the intent of the parties. But intent must be inferred from the circumstances, and the circumstances are ambiguous. The circumstances as described in post 5 are consistent on one hand a gift or loan of money (which would mean that Y is the actual transferee and thus there would be no straw purchase) or, on the other hand, with a prearranged scheme for Y to later transfer the gun to X (which would mean that Y is not the actual transferee making it an illegal straw purchase).
The source of the money is not necessarily conclusive. It is, however, evidence of intent. And when that evidence is ambiguous, the wise thing for an FFL to do would be to avoid the deal.
Note what it says in the instructions to Question 11.a. on the current
Form 4473 (bolded emphasis in original, red, underlined emphasis added):
Question 11.a. Actual Transferee/Buyer: For purposes of this form, you are the actual transferee/buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself (e.g., redeeming the firearm from pawn/retrieving it from consignment, firearm raffle winner). You are also the actual transferee/buyer if you are legitimately purchasing the firearm as a gift for a third party. ACTUAL TRANSFEREE/BUYER EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT THE ACTUAL TRANSFEREE/BUYER of the firearm and must answer ”NO” to question 11.a. The licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown goes to buy a firearm with his own money to give to Mr. Black as a present, Mr. Brown is the actual transferee/buyer of the firearm and should answer “YES” to question 11.a. However, you may not transfer a firearm to any person you know or have reasonable cause to believe is prohibited under 18 U.S.C. § 922(g), (n), or (x). Please note: EXCEPTION: If you are picking up a repaired firearm(s) for another person, you are not required to answer answer 11.a. and may proceed to question 11.b.
Two things are necessary for Mr. Jones (Y) to not be the actual transferee: (1) Mr. Smith (X) must have asked Mr. Jones (Y) to purchase a firearm for him (Mr. Smith/X);
and (2) Mr. Smith (X) must have given (or promised to give) the money for the gun to Mr. Jones (Y). But in the situation described in post 5, we only know that the second condition had been satisfied. We have no information at all regarding the first condition.
