Straw purchases and gifts

[NavyLCDR]

OK. So here is a hot debate. Some of you have been in it somewhere else...

Two scenarios. In both scenarios I would like the parties involved to have the pleasure of picking out their own handguns. I will be giving each person a handgun as a gift. I will take each person to a Washington State FFL, I will tell the FFL that I am buying them a gun as a gift for their birthday, which will be the truth. They will pick out the handgun they want. I will fill out the 4473 with my info, using my military ID, orders to Washington State, and Washington CPL as identification. I will write a check from an account with my name only on it and sign the check myself.

1. The receiver is a 19 year old boy, who is no relation to me. Just the son of a very good friend. He just turned 19. Because he is <21 he cannot buy a handgun from a dealer. HOWEVER, In Washington State it is perfectly legal for him to possess a handgun and to buy a handgun from a private party FTF. He is, in all ways, eligible for possession of a firearm both by state and Federal law.

2. The receiver is my wife. She lives with me in Washington State. Because she is a military dependent, she keeps her Wyoming Driver's license. She cannot buy the handgun from an FFL because she does not have Washington state ID. She is 42 years old. She is eligible in all ways to possess a firearm. She is a Washington resident because she lives with me and it is legal for her to receive a firearm in a private transaction FTF from a Washington resident (namely, me).

Is either case #1 or case #2 a straw purchase? If you are an FFL would you allow this transaction to take place in your store?

Ding, Ding, let the round begin...

 

[calaverasslim]

If I still had my FFL, I would not have let nr 1 go thru. To me, that would be a straw purchase. You buy the gun, Take it home and give it to the young man. I would not allow the 19 year old to pick the gun, nor would I allow him to take possession of the gun.

Even though your filling out the 4473, it is your name on it and you are the legal buyer, not him.

Basically, that is a straw purchase.

Nr 2, I suspect is the same situation, but the spuse is of legal age to purchase a pistol, so let her do the buying. Oh sorry. Not a legal resident, again a straw purchase.

 

[divemedic]

It is my understanding that you should buy the weapon yourself, and fill out the forms. At that point, you are the purchaser of the firearm. If you then give it as a gift, there is not law broken.

In the Bloomberg cases, IIRC the straw purchase was a woman who filled out the 4473, and then a man claiming to be her husband handed the money to the clerk. That made the buy a straw purchase, and enabled the lawsuit.

I could be wrong, though.

 

[dmxx9900]

For #1
have the guy write on a small piece of paper what handgun model and caliber he wants and have him pay the money up front and then go to the shop buy it and fill out all the paperwork and have him meet you at your place to pick it up or go to his place and let him have it either way is irrelevant.
#2 same thing
This way is much easier and safer then him or her having to do a FTF with some random stranger who can be a ageist or some shady thug.

 

[Art Eatman]

dmxx, your way is in fact advocating a straw purchase.

Giving a gift is legal. Getting paid to buy a gun for somebody who is not legally allowed to do so is a straw purchase.

Note that the BATFE regulations are stickied at the top of this web page.

Art

 

[hksw]

For #1
have the guy write on a small piece of paper what handgun model and caliber he wants and have him pay the money up front and then go to the shop buy it and fill out all the paperwork and have him meet you at your place to pick it up or go to his place and let him have it either way is irrelevant.

Now that is definitely a straw purchase.

 

[DMF]

1. In that scenario if you give the gun to the 19 year old as a gift, and he does NOT give you any compensation for that gun, and it is legal under state law for him to possess it, and for you to give that gun to him, he is also a WA state resident, and not prohibited from possessing the gun under fed or state law, then there should be no legal issues. However, if the 19 year old gives you any compensation for that gun it's a straw purchase.

2. Again, IF your wife is a resident of the state, and the other conditions stated above exist there should be no problem giving her that gift.

HOWEVER, as part of scenario 2 it should be noted that dependents of military members are NOT allowed avoid residency laws due to military transfers. The federal law providing exceptions to residency requirements only exist for military members on active duty. Your wife is required to become a WA state resident. If your wife has not gone through the steps to become a legal resident of WA she cannot get the gun from you, and there could be other legal issues, such as voter fraud if she is trying to vote in the previous state.

AGAIN, as I often advise on these topics, if this is more than a mere hypothetical, do NOT take internet advice and run with it. Seek out the advice of a competent attorney who has training and experience in the relevant local, state, and fed laws for your situation.

 

[big_bang]

What sort of common marital property issues would come into play in situation #2 (that's not rhetorical - I really don't know)? Assuming the wife is not guilty of any past disqualifying crimes or mental issues, why would you even bother transferring to her - especially if WA doesn't require registration of firearms?

 

[Odd1]

I think the last time I filled out a 4473 there was a specific question or something asking if I was giving it as a bona fid gift.

It is right on the form. There is no problem with gifts as long as the person could own a fire arm.

 

[NavyLCDR]

If I still had my FFL, I would not have let nr 1 go thru. To me, that would be a straw purchase. You buy the gun, Take it home and give it to the young man. I would not allow the 19 year old to pick the gun, nor would I allow him to take possession of the gun.

Even though your filling out the 4473, it is your name on it and you are the legal buyer, not him.

Basically, that is a straw purchase.

Nr 2, I suspect is the same situation, but the spuse is of legal age to purchase a pistol, so let her do the buying. Oh sorry. Not a legal resident, again a straw purchase.

calaverasslim,

In case #1, the fact that I would tell you, "I am purchasing a firearm
with the intent of making a gift of the firearm to another person" would not alleviate your concerns? Your paperwork is going to pass audit by the ATF, because, like I said, the info on the 4473 is mine. The check is mine. The ID is mine. The gun is actually mine, I am giving it as a gift. I have not committed any violation against 18 USC 922 because I have made no false oral or written statement to you as a dealer in regards to the firearm purchase, I was up front and told you the truth.

In case #2, my wife is a legal resident of Washington state, according to 27 CFR 478, "State of residence. The State in which an individual resides. An individual resides in a State if he or she is present in a State with the intention of making a home in that State." She cannot prove it to an FFL to their satisfaction because of her Wyoming drivers license, which according to Washington state law, she as a military dependent, is not required to surrender.

 

[NavyLCDR]

What sort of common marital property issues would come into play in situation #2 (that's not rhetorical - I really don't know)? Assuming the wife is not guilty of any past disqualifying crimes or mental issues, why would you even bother transferring to her - especially if WA doesn't require registration of firearms?

I am "transferring" the gun to her because I am giving her a gift. That is what a gift is - something that is given to another person for them to own and possess. There is no common marital property issue, it's hers. In Washington state, to "transfer" the gun to her, I hand it to her with the intention of her permanently possessing it, that's it.

 

[NavyLCDR]

HOWEVER, as part of scenario 2 it should be noted that dependents of military members are NOT allowed avoid residency laws due to military transfers. The federal law providing exceptions to residency requirements only exist for military members on active duty. Your wife is required to become a WA state resident. If your wife has not gone through the steps to become a legal resident of WA she cannot get the gun from you, and there could be other legal issues, such as voter fraud if she is trying to vote in the previous state.

DMF, according to WA state law, she has completed the steps to become a Washington resident. She has moved there. She is exempt from transferring her driver's license as a military dependent by Washington state law (it's not in the statutes, it's in their supplement to statutes, I can't think of what it is exactly titled at the moment, but I have seen it in writing). She could, if she chose to, obtain a Washington State ID card, and still maintain her Wyoming driver's license. Many military personnel and dependents choose to do this, not required, because it is allowed by Washington state law.

 

[NavyLCDR]

Deleted, I should not have posted what I did here.

 

[calaverasslim]

NavyLT, if you already knew all the answers, then why did you start this post as a question? Hypothetical as it was?

I see that you have posted and answered posts quite often. Are you one of these folks that like to see their handle in print?

I gave you my answer as a dealer. I would not change it. As for your wife, I was not aware that Wa. had the law that your refer to. You already had that answer and knew that law was somewhat unique for your state and to take issue with someone on the matter, when your already knew the answer on a unique law, is wrong.

If you take umbrage at this answer, so be it.

I won't waste my time reading or answering any post of yours in the future

 

[NavyLCDR]

NavyLT, if you already knew all the answers, then why did you start this post as a question? Hypothetical as it was?

In a situation like this, there is, what can likened to a chain of authority of sorts. The buyer is at the bottom, next is the FFL, then the BATFE agent, then the BATFE headquarters. Many times someone who is lower in the chain of authority will take what the next person higher says as gospel. I posted it as a question to be able to show those persons, especially at the low end, the buyers, what they might expect to hear in answer to questions like these. An FFL might also have replied, well my BATFE agent told me this, and then we would have to analyze what the BATFE agent said.

You gave your answer. I asked you to defend your answer. Notice in your initial reply, you did not offer an opinion, you stated what you believed to be fact - basically these are straw purchases. It seems to me like you are the one who has taken umbrage to my asking you to defend your answer.

So, to summarize, I posed it as a question to show all the possible answers that folks might hear in response. I brought up the subject as a matter of education for us all - one can never learn too much.

I see that you have posted and answered posts quite often. Are you one of these folks that like to see their handle in print?

No. I merely prefer to go and seek what answers I can find, and post what I find, from sources of official value such as written statutes, opinions, etc.

I gave you my answer as a dealer. I would not change it. As for your wife, I was not aware that Wa. had the law that your refer to. You already had that answer and knew that law was somewhat unique for your state and to take issue with someone on the matter, when your already knew the answer on a unique law, is wrong.

The question that I posed was not unique. It is a universal question as to what the exact definition of a straw purchase is. Believe it or not, and I can show you this in both 18 USC 922 and the BATFE's written interpretation of that satatue, that it does not matter who the recipient of the gift of a firearm is as far as the FFL transaction is concerned. If I purchase the firearm with my own money, with the intention of giving it as a gift to anyone that I choose to give it to, than I have not performed a straw purchase. As far as the FFL transaction goes, I have only purchased a firearm with the specific intention of giving it as a gift, which is perfectly legal.

If you take umbrage at this answer, so be it.

Shoot, I don't think I would take umbrage to almost anything anybody would say. I might choose to defend my position though. And you will notice, since you have noticed that I post a lot, that at times I have stated, "Oh, wow, you are correct. Thank you for correcting that". Specifically in regards to military personnel being able to purchase firearms in their "home of record" states, which we are not allowed to do unless we physically reside there part of the year, regardless of what state our driver's license is from. I was initially wrong on that issue, I was corrected, and I admitted that I was wrong.

I won't waste my time reading or answering any post of yours in the future.

I would hardly consider offering a defense to your position, when challenged, as a waste of time. It would show us all what you have read or been told so that we could analyze both the source and the content and all of us would come out wiser in the end, regardless of whether or not any of us agreed to your position.

For what it's worth, I had to go look up umbrage in the dictionary.

 

[big_bang]

There is no common marital property issue, it's hers

You are wrong. A gift between spouses is unique compared to a gift between any other two people in this country. I know people that have gotten divorced, and the guns that were purchased solely by the husband are treated as common property during the split. In most states gifts given between spouses during marriage are nice for sentiment, but for legal purposes they are common property and subject to equitable distribution.

If you feel like going through the inconvenience and added cost of transferring the gun via paperwork, so be it. Have fun. That must transpire in her legal state of residence. If the paper transfer is not required by your state and she lives with you this is a dumb discussion. Give her the dang gun and no one will care. Residency is defined by where someone lives, not what sort of ID they have.

The intent of the straw purchase law is to prevent those who cannot walk into a gun store and legally buy a gun from doing so via a third party. Situation #1 smacks of straw purchase.

I will agree that this thread seems posted largely for the sake of argument and not much else. No rules against that, I s'pose, but I'm out.

 

[NavyLCDR]

If you feel like going through the inconvenience and added cost of transferring the gun via paperwork, so be it. Have fun. That must transpire in her legal state of residence. If the paper transfer is not required by your state and she lives with you this is a dumb discussion. Give her the dang gun and no one will care. Residency is defined by where someone lives, not what sort of ID they have.

My point must not have been made clear enough.

First, I don't want nor ever mentioned transferring the gun to her via paperwork. The situation was, that I wanted her and the 19 year old to be able to pick out her own gun. That means she goes into the store, fondles them all, asks a bunch of questions, takes a couple hours deciding. Then she says I want this one. So I tell the FFL, I want to buy this gun for her as a gift.

So the FFL hands her the 4473. I say, No, she is not buying the gun, I am buying the gun and giving it to her as a gift. The FFL asks us, "Why can't she fill out the 4473?" We reply, "Because she has a Wyoming drivers license because she is a military spouse and exempt from getting a Washington driver's license by Washington law." FFL then says, "Well, she can't buy it from me, so I can't sell it to you to give to her because that would be a straw purchase."

Now, is there no one else besides me that does not see this as a plausible situation? BATFE agents have said in the past that the above scenario would be legitimate and not a straw purchase because she is "immediate family". If it were not an "immediate family" member, these BATFE agents have said, then it would be a straw purchase.

My point is that both the FFL and the BATFE agents, in this case, are wrong. But, if nobody cares to see what the correct answer is, both in written statute and written interpretation of that statute by BATFE in Washington DC, then I will just let this thread die.

If anybody does care what the right answer is, and chooses to expand their knowledge, then I will be happy to cite the appropriate references.

I didn't mean to start an argument, I only meant to bring up a topic of discussion so maybe we all could have examples of interpretations of the situation that differ from what has been published by the BATFE.

 

[wep45]

one can never learn too much

then listen and LEARN. you asked for answers, were given answers, but dont want to accept them. if they are not the answers that you want to hear too bad. go your merry way and do whatever

 

[NavyLCDR]

It's obvious that several people only want to poke at me, and that's fine. Poke away. If there is anybody who cares what the right answer is, according to BATFE, here it is.

The only statute in 18 USC 922 that concerns a "straw purchase" is:

Sec. 922. Unlawful acts:
(a) It shall be unlawful--
(6) for any person in connection with the acquisition or
attempted acquisition of any firearm or ammunition from a licensed
importer, licensed manufacturer, licensed dealer, or licensed
collector, knowingly to make any false or fictitious oral or written
statement or to furnish or exhibit any false, fictitious, or
misrepresented identification, intended or likely to deceive such
importer, manufacturer, dealer, or collector with respect to any
fact material to the lawfulness of the sale or other disposition of
such firearm or ammunition under the provisions of this chapter;

It really does not matter if the final recipient of the firearm is legal to possess and/or receive that firearm, what matters is the false statement. In both cases, no false statements are given to the FFL, oral or written.

So the argument becomes, "but you are giving the gun to a person who can't buy it from the FFL!" And the answer is, that is a perfectly legal transaction to do, because I am GIVING them the gun as a GIFT. And there are BATFE agents who will say you can only give a gift to "immediate family". The "immediate family" rule is a fallacy and is not written anywhere. Here is the BATFE interpretation given in the 2005 (which is the latest) Federal Firearms Regulations Reference Guide on page 165:

It is immaterial
that the actual purchaser and the straw
purchaser are residents of the State in
which the licensee's business premises
is located, are not prohibited from receiving
or possessing firearms, and
could have lawfully purchased firearms
from the licensee.

An example of an illegal straw purchase
is as follows: Mr. Smith asks Mr.
Jones to purchase a firearm for Mr.
Smith. Mr. Smith gives Mr. Jones the
money for the firearm. If Mr. Jones fills
out Form 4473, he violates the law by
falsely stating that he is the actual buyer
of the firearm. Mr. Smith also violates
the law because he has unlawfully aided
and abetted or caused the making of
false statements on the form.

Where a person purchases a firearm
with the intent of making a gift of the
firearm to another person, the person
making the purchase is indeed the true
purchaser. There is no straw purchaser
in these instances. In the above example,
if Mr. Jones had bought a firearm
with his own money to give to Mr. Smith
as a birthday present, Mr. Jones could
lawfully have completed Form 4473.

The use of gift certificates would also
not fall within the category of straw purchases.
The person redeeming the gift
certificate would be the actual purchaser
of the firearm and would be properly
reflected as such in the dealer's records

I also have an email answer from the Seattle Field Office of the BATFE that says exactly the same as above.

But, apparantly the only people who want to post here just desire to flame me, so oh well, I tried to make this a learning experience for those with questions.

 

[NavyLCDR]

You are wrong. A gift between spouses is unique compared to a gift between any other two people in this country. I know people that have gotten divorced, and the guns that were purchased solely by the husband are treated as common property during the split. In most states gifts given between spouses during marriage are nice for sentiment, but for legal purposes they are common property and subject to equitable distribution.

Thank you for clearing that up for me. Very interesting, in deed! I have no reason to doubt that I was wrong and you are correct.

 

[deadin]

To add to big-bang's statement.... If you are in a Community Property state (and WA is), anything obtained after the marriage is community property.
In fact, if either of you had liquid assets (bank acounts, stocks, bonds, etc.) prior to the marriage, if they aren't kept seperate after the marriage they can be considered "co-mingled" and are also community property.

As for scenario #1, I don't care if you put on your Dress Blues, gather up all of the Federal Regs, your transfer orders, etc., there is no way you can "force" a FFL to sell you a gun if he is not comfortable with the deal.

Also, why doesn't your wife just get a State ID? It makes life a lot simpler.

Is the "Tri-State" rule still in effect? Before I retired from the Navy (1978) there was a rule that said that two of the three (residence/duty station, drivers license and auto registration) had to be the same. I also seem to remember that my wife had to get her DL in the state we were living in. But that was before State ID's were readily available.

 

[Rifleman 173]

A few years ago Sarah Brady bought her own son a high powered sniper... er... scoped hunting rifle and gave it to him as a gift for Christmas. If she can do that and get away with it, then the feds had best NEVER say anything at all about anybody else giving a firearms as a gift. People were complaining about Sarah making a strawman purchase to the BATF and the feds just kept turning their heads about it. So until the feds take action against Sarah Brady, they shouldn't be criticizing other people.

 

[deadin]

There is nothing illegal about gifting a firearm to someone who can legally own it. The problem comes proving or disproving there was no money changing hands between the "gifter" and "giftee". (The Feds usually have better lawyers than the average person.)
The answer is to be legal and don't try to shove it in anybodies face.
If it's truely a gift, why even say anything that may lead the FFL to think it's possibly a straw purchase? That's like waving a red flag at a bull. Just stupid.

 

[DMF]

DMF, according to WA state law, she has completed the steps to become a Washington resident. She has moved there. She is exempt from transferring her driver's license as a military dependent by Washington state law (it's not in the statutes, it's in their supplement to statutes, I can't think of what it is exactly titled at the moment, but I have seen it in writing). She could, if she chose to, obtain a Washington State ID card, and still maintain her Wyoming driver's license. Many military personnel and dependents choose to do this, not required, because it is allowed by Washington state law.

Sorry, but I used to be a WA resident and have more than just a passing knowledge of this topic.

Here is the RCW that applies:
http://apps.leg.wa.gov/RCW/default.aspx?cite=46.20.021

There is no exception for spouse of active duty military members, and the federal law only exempts the military member, not dependents.

Your wife, if she is actually a WA State resident as you claim, was required by WA State law to get a WA State DL or ID within 30 days of becoming a resident of the State. There is no WA State or federal exception to that requirement.

 

[Frank Ettin]

...The problem comes proving or disproving there was no money changing hands between the "gifter" and "giftee". (The Feds usually have better lawyers than the average person.)...

There's also an issue of intent. It is arguable, based on the facts as recited in post #1 that these are not truly gifts insofar as a gift is understood to be a tangible expression of affection or esteem.

The OP makes it sound like there's a "hidden agenda" to secure handguns for two people who could not purchase them. And the handguns are characterized as gifts to make the whole deal sound kosher.

Maybe that's not the case, but the words used and the tone in which the matter is described certainly suggest that inference. Now if someone thinks that a lawyer could not possibly prove such an intent, well it of course depends on the totality of the evidence; but you'd be surprised what a good trial lawyer can prove.