New Form 4 (5320.4) and new Form 5320.23 questions.

[MCMXI]

So now that the new 2016 Form 4 is active, every member of a Trust listed on Form 4 has to submit a Form 5320.23 to the ATF and a copy to the local CLEO. The form going to the ATF has to be accompanied by one 2"x2" photo and two sets of fingerprints on form FD-258 but I don't see an explanation as to whether or not multiple photos/fingerprints are required if submitting Form 4s for multiple suppressors/SBRs etc. It's kind of obvious if you're submitting paperwork for a Trust for one SBR, one suppressor etc., but it's not obvious if you need to submit multiple photos and prints with each Form 4 application.

 

[Aaron Baker]

Give them a call at the NFA Branch in West Virginia and ask.

Let me know what they say. I'm curious.

Aaron

 

[MCMXI]

I just spoke with a woman at the NFA Branch and she informed me that each Form 4 (one per serialized item) must be accompanied by one photo and two sets of prints, and a 5320.23 for each member if applying as a Trust. This process has definitely become more burdensome.

 

[pdsmith505]

That's what I expected, but refrained from commenting because I didn't actually know the answer.

I've only submitted as a trust previously, but I imagine that individual filers had to provide a complete set of everything for each Form prior to 41F.

 

[MCMXI]

I remember reading that under the new rules it wouldn't be necessary to provide photos and prints for the members of a Trust if an application had been submitted and approved in the previous 12 months and no additional members have been added to the Trust. It doesn't make sense to me that the ATF needs a photo and fingerprints to accompany each Form 4 in the same packet. Surely they only need one photo and two sets of prints per person to add to the database. It seems that they're intentionally trying to make this more burdensome to discourage the purchasing of NFA items.

 

[Acera]

Next purchase will probably not be on the trust, just an individual. Notarize a document that leaves it to the trust when I pass

Too much trouble right now. Plus my trust members hate this new rule.

Another poke in the eye of honest Americans by an administration that hates us.



.

 

[pdsmith505]

I remember reading that under the new rules it wouldn't be necessary to provide photos and prints for the members of a Trust if an application had been submitted and approved in the previous 12 months and no additional members have been added to the Trust. It doesn't make sense to me that the ATF needs a photo and fingerprints to accompany each Form 4 in the same packet. Surely they only need one photo and two sets of prints per person to add to the database. It seems that they're intentionally trying to make this more burdensome to discourage the purchasing of NFA items.

Everything I read indicated only that the trust documents themselves need not be resubmitted. SilencerShop had a blog post about what 41F meant as early as Jan 29th (http://blog.silencershop.com/details-atf-41f/).

 

[MCMXI]

pdsmith505, good point.

This information from the NFA's Q&A section is interesting.

https://www.atf.gov/resource-center/docs/general41fquestionsandanswersupdated-6-28-16pdf/download

Q: Will new responsible persons, added after the making or transfer, be subject to the same
requirements?
A: Once an application has been approved, no documentation is required to be submitted to ATF when a
new responsible person is added to a trust or legal entity. However, should a responsible person change
after the application has been submitted, but before it is approved, the applicant or transferee must
contact the NFA Branch for guidance.

This makes no sense at all. We have to go through all of this crap and yet we can add "responsible persons" at will with no need for photos, fingerprints, background check etc. So it would make sense to buy a number of NFA items, submit the application with only one name on the Trust and then add trustees once the Form 4s have been approved.

 

[MCMXI]

On another note I need to look into what the ATF means by "properly equipped to take fingerprints". I would like to offer that service.

Q. May a Federal firearms licensee fingerprint a customer? As an FFL dealer, can we fingerprint our
customers?
A. Fingerprints may be taken by anyone who is properly equipped to take them (see instructions on ATF
Form 1, Form 4, Form 5, and Form 5320.23). Therefore, applicants may utilize the service of any
business or government agency that is properly equipped to take fingerprints.”

 

[pdsmith505]

This makes no sense at all. We have to go through all of this crap and yet we can add "responsible persons" at will with no need for photos, fingerprints, background check etc. So it would make sense to buy a number of NFA items, submit the application with only one name on the Trust and then add trustees once the Form 4s have been approved.

The ATF lays out it's reasoning for this in Section IV, Paragraph (?) I of the finalized rule (page 56 of the PDF at this link: https://www.gpo.gov/fdsys/pkg/FR-2016-01-15/pdf/2016-00192.pdf ). They did consider requiring changes in responsible persons to be submitted within 30 days, but decided not to.

It's really too long to quote, but as a BLUF, several comments submitted provided reasons why 1) the ATF doesn't have the authority to do this and 2) that the burden would be excessive.

On another note I need to look into what the ATF means by "properly equipped to take fingerprints". I would like to offer that service.

Many people roll their own fingerprints successfully. It would seem that properly equipped means being able to place fingerprints on the authorized cards.
You can request those cards from here:
https://www.atf.gov/distribution-center-order-form

And here's one of many ink pads from amazon:
https://www.amazon.com/Lee-Inkless-...id=1472173511&sr=8-1&keywords=fingerprint+kit

 

[MasterSergeantA]

On another note I need to look into what the ATF means by "properly equipped to take fingerprints". I would like to offer that service.

Q. May a Federal firearms licensee fingerprint a customer? As an FFL dealer, can we fingerprint our
customers?
A. Fingerprints may be taken by anyone who is properly equipped to take them (see instructions on ATF
Form 1, Form 4, Form 5, and Form 5320.23). Therefore, applicants may utilize the service of any
business or government agency that is properly equipped to take fingerprints.”

At my LGS, both the shop and a fellow that teaches a concealed carry class are "properly equipped to take fingerprints". The shop is an SOT and the instructor is approved by the state, so they both do it all the time. (A CWP is not a requirement here in Arizona, but there are advantages to having it. That is the only reason the classes still run. Submitting fingerprints is part of the process, so most of the instructors do them.)

 

[MCMXI]

Many people roll their own fingerprints successfully. It would seem that properly equipped means being able to place fingerprints on the authorized cards.

Really? If you look at the instructions on the FD-258 fingerprint card on the sample download from the ATF website under THIS CARD FOR USE BY, it seems that it's not acceptable to "roll your own". For one thing, how would the recipient of the FD-258 form know that the prints match the name?

https://www.atf.gov/firearms/docs/form/finger-print-card-instructions-and-example-fd-258/download

 

[mfer]

pdsmith505, good point.

This information from the NFA's Q&A section is interesting.

https://www.atf.gov/resource-center/...16pdf/download

Q: Will new responsible persons, added after the making or transfer, be subject to the same
requirements?
A: Once an application has been approved, no documentation is required to be submitted to ATF when a
new responsible person is added to a trust or legal entity. However, should a responsible person change
after the application has been submitted, but before it is approved, the applicant or transferee must
contact the NFA Branch for guidance.

This makes no sense at all. We have to go through all of this crap and yet we can add "responsible persons" at will with no need for photos, fingerprints, background check etc. So it would make sense to buy a number of NFA items, submit the application with only one name on the Trust and then add trustees once the Form 4s have been approved.

This is they way I thought it worked with a brief conversation I had with a 'gun trust lawyer'. But now you are saying that if I:
1. Create a trust with me as sole person
2. Buy a suppressor or other NFA item, I submit my trust information. I thought that circumvented the need for local CLEO, finger printing and passport photo but now it sounds like I need to do both for a trust.
3. I can then freely add (and remove) people to the trust (needs to be notarized).

I was also told you can timeline the additional trustee adds or remove them with addendums. I mean couldn't you just remove all the people from your trust, buy NFA item, and then re-add them? I'm not trying to circumvent any laws, really just trying to understand. I don't own any NFA items, but thought to be safe, I'd set up NFA Gun Trust to protect my wife from any 'felony charges' b/c I wasn't home, etc.

Is my understanding correct? You need to fingerprint, passport and local CLEO with Trusts now?

 

[Elkins45]

Really? If you look at the instructions on the FD-258 fingerprint card on the sample download from the ATF website under THIS CARD FOR USE BY, it seems that it's not acceptable to "roll your own". For one thing, how would the recipient of the FD-258 form know that the prints match the name?

https://www.atf.gov/firearms/docs/form/finger-print-card-instructions-and-example-fd-258/download

Wouldn't NFA applicants qualify as "other entities required by federal law" under #3?

 

[pdsmith505]

Really? If you look at the instructions on the FD-258 fingerprint card on the sample download from the ATF website under THIS CARD FOR USE BY, it seems that it's not acceptable to "roll your own". For one thing, how would the recipient of the FD-258 form know that the prints match the name?

Honestly, I don't know the correct answer, just that many people report being successful in doing so.

Elkins45 may have hit on the answer, but it depends on whether an applicant is considered an "entity required by federal law." Is an individual an entity for this purpose?

 

[MCMXI]

This is they way I thought it worked with a brief conversation I had with a 'gun trust lawyer'. But now you are saying that if I:

1. Create a trust with me as sole person
2. Buy a suppressor or other NFA item, I submit my trust information. I thought that circumvented the need for local CLEO, finger printing and passport photo but now it sounds like I need to do both for a trust.
3. I can then freely add (and remove) people to the trust (needs to be notarized).

I was also told you can timeline the additional trustee adds or remove them with addendums. I mean couldn't you just remove all the people from your trust, buy NFA item, and then re-add them? I'm not trying to circumvent any laws, really just trying to understand. I don't own any NFA items, but thought to be safe, I'd set up NFA Gun Trust to protect my wife from any 'felony charges' b/c I wasn't home, etc.

Is my understanding correct? You need to fingerprint, passport and local CLEO with Trusts now?

Trusts now require all trustees to provide one photograpsh and two sets of fingerprints per Form 4/Form 1 submitted. Each trustee must also send a copy of the 5320.23 form to their local CLEO (no approval required).

The ATF has stated that it's not necessary to notify them of individuals added to the trust once a Form 4 has been approved. So it might make sense to submit as many Form 4s as possible and then add trustees once you've received the tax stamps. That would eliminate the need to provide photos and fingerprints for those added. If you were to submit another Form 4/ Form 1 you'd need to provide photos/fingerprints for anyone on your trust since the trust would have changed.

 

[AlexanderA]

Acera wrote:

Next purchase will probably not be on the trust, just an individual. Notarize a document that leaves it to the trust when I pass

Better consult a lawyer before you do this. I seems to me that such a document would have to have all the formal requisites of a will, and would be subject to probate (i.e., would become a matter of public record).

But why do it this way anyway? An NFA item held as an individual passes tax-free to a lawful heir, using Form 5. The "lawful heir" can be established either by will, or by intestate succession (by operation of law). If by will, it can be under the residual clause of the will, so that the item does not have to be named specifically.

 

[Acera]

Acera wrote:



Better consult a lawyer before you do this. I seems to me that such a document would have to have all the formal requisites of a will, and would be subject to probate (i.e., would become a matter of public record).

But why do it this way anyway? An NFA item held as an individual passes tax-free to a lawful heir, using Form 5. The "lawful heir" can be established either by will, or by intestate succession (by operation of law). If by will, it can be under the residual clause of the will, so that the item does not have to be named specifically.

I just want a piece of paper that makes my intent known. The trustees can then fill out the form 5 after I am gone. Good idea about checking on it though. Got some meetings with some attorneys early next week about some other things, will run it by them at that time.

Depending on what they say, may start another trust and add the remainder of the trustees after the forms for future purchases are approved. Hate to keep looking for legal loopholes to avoid the situation that the new rule has imposed. Got trustees in different states, and none of them like the new rules.


.

 

[Elkins45]

My trust served me well through my acquisition of a number of stamps without having to get the Sheriff to sign off or paying to have prints done. Now that I have to do prints regardless I really doubt I will ever buy another NFA item, but if I do it will be as an individual. While I'm sure my other trustee (my wife) would be willing to put up with the annoyance it isn't worth the trouble given that she has zero interest in guns or shooting. The only reason she's on the trust to begin with is in case I ever forgot and left an NFA item out of the safe.

There were a couple of my stamps that were done on a whim by filing a Form1 through the efile system, most notably a SBR 10/22--for the cost of the stamp I could have bought a 22 conversion for my SBR AR upper--although since I already had the gun I suppose it gave me a second SBR platform for the same cost.

I suppose I should be thankful that 41F has stopped me from any more Form1 "impulse buys" because at $200 a pop they do get expensive.

 

[Frank Ettin]

...I just want a piece of paper that makes my intent known...

If you want a piece of paper to make your intent known, and if you want it to be given effect after your death, it must be a will, meet the legal requirements for a will in your State, and be admitted to probate after your death.

In general a piece of paper, even if notarized, will not be given effect for the purposes of transferring property after death. Laws relating to posthumous transfer of property are technical and strictly applied.

 

[Acera]

Frank, no need to probate, everything is in a trust now. We were referencing if I ever decide on another NFA item, I will not put it in the trust due to the new requirements. The piece of paper would be for that one item. Don't think my heirs/trustees would have an issue getting it moved over either to the trust or to an individual since my intent would be clearly known. Not that big of a deal, long way down a list of worries right now...............................

 

[Frank Ettin]

If you don't do things properly and formally, things can still work out. But you can't count on it. The reason for doing things properly and formally is so that you can count on things working out the way you want.

At lot of lawyers have made a lot of money trying to fix (sometimes unsuccessfully) problems that could have been avoided. And I've often seen during the course of my career defeat snatched from the jaws of victory.

But do as you wish. It won't be my problem.

 

[Acera]

Thanks Frank.

The lawyer that is my NFA attorney also handles all my trust related items, not just my firearms my real estate and everything else. I've got meetings all next week with an entirely different team of attorneys, I will ask them their opinions over lunch or drinks after work and see what they say.



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