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NFA Items and Inheritance -- i.e: What to do with grandpa's Machine Gun

Discussion in 'NFA Firearms and Accessories' started by Sam1911, Jan 27, 2011.

  1. Sam1911

    Sam1911 Moderator Emeritus

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    We have many requests for answers on how to deal with machine guns and other NFA items owned by a relative who has passed away.

    The BATFE has written an open letter on the subject which can be found here: http://www.atf.gov/press/releases/1999/09/090599-openletter-nfa-estate-transfers.html

    I've bolded the section having to do with UNREGISTERED weapons. I will add that, especially since these firearms are extremely valuable, if registration paperwork cannot be located and the heirs are unsure whether the item was registered upon making or during an amnesty period, it makes good sense to have an attorney contact the BATFE and determine its status.

    Remember, an unregistered NFA Title II weapon is completely illegal. Keeping one you find opens you to federal felony charges for which the criminal sentences can include TEN YEARS in federal prison and up to $250,000 in fines.
     
  2. Swing

    Swing Member

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    Good point. Once thing worth mentioning is proposed legislation about just that. Info at NFAOA.
     
  3. kell490

    kell490 Member

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    Just wanted to point out another option for grandpop's UN-registered machine gun is to cut the receiver per ATF instructions to de-activate it, and the parts can be sold. It's a better option then turning it into the ATF.
     
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  4. Spats McGee

    Spats McGee Moderator

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    What follows is not legal advice, but merely commentary. If you want legal advice, go buy some.

    I took a quick look at the CFR, the underlying statutes and the BATFE site. (And, given the search strings that I ran, I expect the black helicopters to show up any minute. . . .) Not an exhaustive research process, but I just didn't see any "threads" to chase down. With that said, looking at the BATFE's site, the only mention of destruction of machine guns is in the context of importation. You can import certain machine guns, but only if you have the right licenses, the right stamps, and the item has been chopped up . . .

    I found no exception that would allow the finder of a machine gun to possess it long enough to cut up the receiver and sell the parts. Possession of an unregistered machine gun, without the proper registration and stamps, is a crime. Plain and simple. I did find one itty-bitty wiggle spot, though, which is what I'd use to advise a client if (a) I had private clients; and (b) one of them called me to say he'd found a machine gun.

    Here's the underlying statute:
    Here's the CFR section:
    Ok. Take a quick look at the parts I bolded. Now let's turn to 18 USC 922(o).
    Note the inclusion of the word "lawful" in regards to transfers and possessions that happened before May 19, 1986. Note also that the word "lawful" is not used in the section regarding transfers to the government. If I were advising my hypothetical private client, I'd tell them to sit tight while I contacted the BATFE to hand over the machine gun. Those statutes don't apply to "a transfer to the United States or an agency thereof, or to a State, or department, etc. etc." My client's possession of the gun is illegal, but I'd call it a "transitory possession." And the transfer to law enforcement isn't covered. There's a line of caselaw out there on felons having transitory possession of firearms, and I think it's been held as an exception to the normal "felon in possession" rules, where the felon either: (1) uses a firearm in defense of self or others; or (2) immediately surrenders the firearm to law enforcement.

    If you hire an attorney to contact the BATFE on your behalf, the attorney doesn't necessarily have to tell them who's got the gun, at least not until he has some agreements in place (preferably in writing, signed in triplicate, and delivered by Certified Mail, Return Receipt Requested, with Restricted Delivery . . . ) to protect you when you hand the gun over. And just calling the BATFE doesn't give the BATFE any reason to believe that the attorney has the gun . . . .
     
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  5. Aaron Baker

    Aaron Baker Member

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    For what it's worth, I had a recent conversation with an ATF bureaucrat when I called up inquiring about a client who had possession of a silencer originally owned by his father-in-law. No proper paperwork had been done when the father-in-law passed, and my client didn't take possession until the mother-in-law passed almost a decade after that.

    The ATF bureaucrat opined that they have no interest in pursuing people legally who mistakenly find themselves in possession of an unregistered NFA item (including ones that were registered, but not to the possessor.) She said that the ATF's main interest is in getting the firearm legal, by doing whatever transfer paperwork was necessary to make that happen. Obviously that's not possible in the case of unregistered machine guns, but she did even mention the possibility of transferring a gun like that to a museum if it had historical significance. (Obviously there would be hurdles if it were going to remain functional, since a non-governmental museum could no more legally possess it than anyone else.)

    Point is, though, that if your interest is in turning over an illegal, unregistered machine gun to the ATF, they're not going to want to prosecute you for doing the right thing.

    I asked if the ATF's preference, in case this silencer couldn't be legally transferred, would be to turn it over to the local field office. The answer to that was a resounding no. That creates all sorts of paperwork and storage requirements for them. They have to find a place to keep that silencer now, and record that they have it. She said they have enough illegal guns that they're seizing to keep track of that they don't want to voluntarily accept more unless that's the only option. She said the preference, if there was no desire to keep it or no way to get it legal, would be for my client to destroy it. (Through crushing for an aluminum silencer, or torch cutting for a steel one, she said.)

    The message I came away with is that the ATF isn't out to get you if you find yourself in this situation, and that they will be as helpful as they can be. I do, however, think it's wise to use an attorney as an intermediary. An attorney doesn't have possession of the firearm and has a duty of confidentiality to his client, and thus the ATF has no idea whose door to kick in. It's just better to have that buffer there until a solution is worked out.

    Aaron
     
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  6. Spats McGee

    Spats McGee Moderator

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    Thank you for your input. That's an excellent point about having an attorney as a buffer. I'm going to add just a couple of small notes to clarify that, for the benefit of later readers. These all operate on the assumption that we're talking about a client in simple, rather inadvertent possession of an unregistered NFA item, not one in which the client intends to use said item in a crime spree.
    • Under the Model Rules of Professional Conduct (which, AFAIK, are fairly uniform across the country) the attorney has a duty of confidentiality to the client. The attorney would not be permitted to disclose the client's identity to the BATFE under those rules. IMHO, doing so would: (a) open the attorney up to a lawsuit by the client; and (b) put his law license in jeopardy.
    • Even a one-attorney operation may have dozens of clients at any given time. Large firms may have clients in the hundreds. The BATFE isn't going to know which client it may be. It won't even know whether the attorney has a written file on said client, unless the attorney happens to mention it.
    • The BATFE isn't going to go kick down an attorney's office door without a warrant. That's just BEGGING to get the agents sued. They could find themselves in violation of the First, Fourth, Sixth, and Fourteenth Amendments, and those are just the ones that I can name off the top of my head.
    • If we're talking about simple possession, BATFE's not going to go get a warrant, either. It would have to go to a judge (who is a lawyer), and ask the judge to allow it to rummage through a whole bunch of files, all of which are protected by a longstanding privilege (attorney-client communications), and subject to constitutional protections, just to see if they (the BATFE) can figure out which one has the gun. Nope. Not gonna happen.
     
  7. kell490

    kell490 Member

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    I found this written by an attorney

    https://blog.princelaw.com/2007/09/25/grandpops-machine-gun-in-the-chest/

    While the BATFE desires to dispose of the weapon, in entirety, including parts, which in themselves are NOT machineguns, the BATFE allows for a weapon to be decommissioned. The preferred method for destroying a machinegun receiver is to completely sever the receiver in specified locations by means of a cutting torch that displaces at least one-quarter inch of material at each cut location.11However, A machinegun receiver may also be properly destroyed by means of saw cutting and disposing of certain removed portions of the receiver.12 The BATFE has published preferred procedures for the destruction of specific machineguns.13 By destroying the receiver, you are enabling the estate to sell the parts, which could constitute a significant amount of money.

    I think using an attorney who specializes in NFA weapons, and estate planning is a good idea.
     
  8. lustus

    lustus Member

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    Yeah but attorneys are so expensive. They'll charge you an arm and a leg for a 10 minute phone call.
     
    Last edited: Sep 20, 2016
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  9. TRX

    TRX Member

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    I have three NFA firearms. My will gives them to three different friends in three states. I have a codicil that summarizes the various regulations that covered NFA firearms up to that date, where to find current information, and reasons why they might not want to accept ownership of an NFA firearm.
     
  10. SGW Gunsmith

    SGW Gunsmith Member

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    My stuff all has tax stamps and are registered to an LLC, when that could still be done. Not sure if that's allowed any longer:

    2tkNgypl.jpg

    GJcHMR9l.jpg
     
  11. kell490

    kell490 Member

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    I would have liked to register the tax stamp to a trust but back in 1994 that wasn't an option as far as I remember or no one did it maybe it was an option back then. Now it's common place as far as I know can still be done because how would a business register an NFA weapon has to be a way using an LLC or corp? My understanding the better way to go is a living trust don't you have to file K-1 every year for an LLC? Now at this point I would have to pay $200 each machine gun to transfer into the trust since I don't have any kids if I pass on my wife knows what to do or my other family members. I plan on selling before I get too old or have any medical problems so don't have to deal with the issues. What I'm concerned about is the taxes I might have to pay in the future because of the value increase. Most buyers are dealers these days being a business they have to report tax on any check they write someone over certain amount.
     
  12. dogtown tom

    dogtown tom Member

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    It is.
     
  13. dogtown tom

    dogtown tom Member

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    It's always been an option.

    A business of any type can apply for a tax stamp, the entity that is the applicant depends on how the business is structured.
    Trusts, corporations, etc may have multiple "Responsible Persons" that would need to submut fingerprints and photos. The definition of an RP is on the Form 4.

    A K-1 is for income tax purposes and earning by a trust. I would hope your attorney was smart enough to write a separate trust expressly for the purposes of NFA firearms possession.

    $200 to transfer into a trust solves any problems with a Form 5. On your death the trust continues to possess the MG.


    Cash buyers only!:D
     
  14. CapnMac

    CapnMac Member

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    I am reliably informed by a qualified individual, that the reason attorneys are so expensive is because "they are cheaper than the alternative."
     
  15. AlexanderA
    • Contributing Member

    AlexanderA Member

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    The increase in the value of a machine gun, during the period of time that you own it, is "unrealized capital gain." If you sell it, that becomes "realized capital gain" and it could result in a large and unexpected income tax bill. On the other hand, if you die and it's passed on to your heirs, they get the benefit of a "stepped up basis" to the fair market value on the date of your death, and as a result could sell it virtually tax free. Unfortunately, if you transfer it to a trust or LLC before your death, it's no longer an estate asset and therefore doesn't qualify for "stepped up basis." The original basis carries over.
     
  16. Texasgrillchef

    Texasgrillchef Member

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    Not if Nancy Pelosi and her cronies in congress get her way! Lol
     
  17. Texasgrillchef

    Texasgrillchef Member

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    Its sad that any historical nfa gun has to be destroyed if it wasnt registered.

    However with gun control lobby at its peak right now to get a law passed that would allow these valuable weapons to get registered. Someone shouldnt have to take that as a loss to their estate.
     
  18. Texasgrillchef

    Texasgrillchef Member

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    Just a thought....

    But if you find an unregistered machine gun that grandpa used in ww2 or korean war or even vietnam war hidden when he passed, and you didnt know about it, obviously no one else does either. Its managed to go 50+ years without it being discovered and confiscated and grandpa going to jail.

    Either disassemble it, dispose of the receiver. And sell the parts. Since the parts arent illegal. Or go hide it somewhere that a question of who it belongs too or who is in possession of it is unprovable.

    I own a 1000 acres, unless the ATF or police know where to look. I doubt they could ever find anything! Lol

    Sadly Im not lucky/unlucky enough to ever come across something like this lol
     
  19. Jeb Stuart

    Jeb Stuart Member

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    The Liberals most likely would like to dig Grandpa up and put him in jail along with the OP.
    I am not a lawyer, but ignorance of the law is not a excuse. And since when do laws and the constitution make any difference anyway? The sad part is Lawyers do not have a clue either. And they can cost you a bundle and have no problem having you put a second mortgage on your house and land to continue to finance themselves in some effort to keep you and Grandpa out of jail. . I would take the pain and just destroy the weapon.
     
    Last edited: Jul 2, 2019
  20. AlexanderA
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    AlexanderA Member

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    Fortunately there's a distinction between the receiver (the serial numbered part) and the rest of the parts. (On Browning guns, for example, the serial numbered part is the right side plate.) Save the rest of the parts. FA parts sets are going for a fortune these days. Even dummy guns made up on parts sets can be worth thousands. https://www.ima-usa.com/collections/original-machine-guns#listpage
     
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