Ryan Cleckner (courtesy youtube.com)

This post is by Ryan Cleckner [above], an attorney who specializes in firearms law. It’s republished from ryancleckner.com with the author’s permission.

I recently posted an article exploring the new rules by the ATF concerning NFA trusts. One of the multiple changes discussed in the article, which include the removal of CLEO approval and new rules for handling firearms in an estate, is extra paperwork and approval requirements for “responsible persons.” These “responsible persons” on the trust will need to . . .

fill out a special form (Form 5320.23) and submit it along with fingerprints and photographs to the ATF with each application/form to make or transfer an NFA firearm. A copy of the “responsible person” form (Form 5320.23) and the NFA firearm application/form will also need to be sent to each “responsible person’s” local Chief Law Enforcement Officer (CLEO).

The copies of the forms submitted to each respective CLEO are a notification to law enforcement only – under the new rules no approval from the CLEO is required.

This will significantly increase the paperwork burden – as many different CLEOs may be notified across the country as there are “responsible persons” on particular trust. It is important, therefore, to determine who is a “responsible person” on an NFA trust so that the proper paperwork can be filed with the ATF and the appropriate CLEOs may all be notified.

Here is the relevant language from the ATF’s published final rule notice on NFA trusts:

The term “responsible person” for a trust or legal entity includes “those persons who have the power and authority to direct the management and policies of the trust or legal entity to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on
behalf of, the trust or entity. In the case of a trust, those with the power or authority to direct the management and policies of the trust include any person who has the capability to exercise such power and possesses, directly or indirectly, the power or authority under any trust instrument, or under State law, to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for or on behalf of the trust.”

The definition of a “responsible person” is also mentioned elsewhere in the 200+ page document in smaller sections but this is the most complete definition I could find. From that language, we can know that there are two conditions that define which trust “members” (for lack of a better term) will now be considered “responsible persons.”  In short, they are those who are (1) in charge of the trust and (2) may possess NFA firearms on behalf of the trust.

It is not worth debating whether these two provisions are an “and” (both required) or an “or” (only one or the other required) requirement because they both cover the same type of “member.” Namely, if the person may lawfully possess an NFA firearm on behalf of the trust, then that person is a “responsible person.”

The language establishes a “responsible person” as someone who has “the power and authority to direct the management and policies of the trust . . . to receive, possess, ship, transport, deliver, transfer . . . a firearm . . . on behalf of . .  the trust.”  This means that anyone who actually controls the trust language and has the power to modify it is a “responsible person.”

The language from the ATF then expands that definition in the case of NFA Trusts and includes certain persons who have the “capability to exercise such power and possess . . . the power or authority . . . to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for or on behalf of the trust.”

This language could be read to include only those already covered in the first part of the definition who also have the authority to possess the NFA firearms. For example, if someone was in charge of the trust but couldn’t possess the trust’s NFA firearms then they wouldn’t be a a “responsible person.”

I think that this interpretation is incorrect. This interpretation would limit the original definition. The language used by the ATF, however, seems to expand the original definition.

I argue that anyone who may lawfully possess an NFA firearm under the trust (second part of definition) is a “responsible person” because they also may “exercise [the] power” to “receive, possess, ship, transport, [etc.]” (first part of definition) NFA firearms of the trust. A lawful possessor (usually a “trustee” of the trust) may “exercise” the power to manage the trust by adding NFA firearms to the trust.

For example, a lawful possessor under the trust generally may also use a copy of the trust to transfer a new NFA firearm into the trust without the consent or approval of anyone else in the trust. In such a transaction, the person who was previously a mere lawful possessor has the capability of managing the inventory and property of the trust on their own. Therefore, a lawful possessor may exercise power to manage the trust’s ability to “receive, deliver, transfer, [etc.]”

This means that if a person can lawfully posses an NFA firearm under that trust, they can also generally mange the trust by adding to its inventory and manage/control the location of trust property. Therefore, if a person is allowed to posses an NFA firearm from the trust (regardless of whether they actually do), then they are a a “responsible person” for the purposes of the submission requirements above.

This interpretation, of course, is subject to change once the actual language in the regs is amended/published and/or ATF publishes the formal rule. Much of this interpretation is based on ATF’s choice of words explaining what they intend that the final rule will do and is not based on what the language actually will say or do.

Even if my interpretation is wrong, this seems to be the intent of the ATF. If it turns out that not all people who could possibly possess an NFA firearm under the trust are “responsible persons,” then it will very likely be corrected so that they are.

The entire purpose of this particular change is to prevent people from possessing NFA firearms without being approved to do so by the ATF and without the local CLEO being notified about who may be in possession of an NFA firearm. If the term “responsible person” included only the person who created and can change the trust, then it would not serve the goal of the ATF.

So, who is not a “responsible person?” Simply, anyone who may not possess an NFA firearm under the trust is not a “responsible person.” Examples of this include future beneficiaries who are not currently old enough to lawfully possess NFA firearms.

If you haven’t come to this conclusion already, much of the benefit of having an NFA trust is now gone. Yes, members of the trust may still share NFA firearms in the trust without conducting a transfer (which is why I think the ATF wants them all to be checked-out) but the main reasons I hear from people of getting a trust – to avoid the CLEO requirement and to avoid extra paperwork each transaction – are now gone.

My advice going forward? Just transfer the firearm to yourself and tell your buddy to buy his own – it’s good for our industry.

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73 Responses to Who is a ‘Responsible Person’ on an NFA Trust?

  1. So a question comes to mind. You have a trust. It has NFA items in it, all approved.

    At a later point in time you want to add someone. There is no mechanism that I know of to have the ATF pour over fingerprints and pictures except during the approval period, which is long past.

    How would you add someone to the trust in this post-41P world?

    O2

    • I posted something similar, but it looks like that fell into the ether.

      Is it not true that you can amend your trust at any time? Could you not simply add authorized possessors after the approval is done? If so, what is to stop one from creating a new trust for each NFA item, doing the print and paperwork dance by yourself, then adding everyone you know to the trust after the approval?

    • My understanding the the ATF reviews each Form submission as an independent transaction.

      So when I added an individual to my trust, his signed form just went along with that first Form (and all filed since then). I was told by an examiner there were no changes needed to my previously approved Forms – the “Trust” as an entity owned the firearm, not the individuals.

      The rule change shouldn’t change that process, just the addition of another set of fingerprints and mugshot when someone is added to the Trust.

      Robert left off the #1 reason for having a Trust over individual ownership – maintaining ownership of the Trust property in the event of your demise. Say in 40 years you pass away and Silencers are non-transferrable… if they are individually owned then they could not be willed to a successor. If they are in a properly formed Trust, the beneficiary Trustee could become the “Trustee” and there would be no transfer.

      I’m not a lawyer but that’s how my shit is set up.

      • If there is no new application, how does the update of the trust trigger fingerprint requirements? Does this new rule imply that all existing trust “responsible persons” now be vetted?

      • I think you missed my point (TomD didn’t). The goal is to assure all trustees are vetted. This happens during the Form 1 or 4 approval process by submitting pictures and fingerprints of all trustees along with the form.

        So how are they supposed to vet trustees added AFTER approval?

        O2

        • I get your point, mine was they apparently don’t retroactively review applications when a new form is filed. Obviously this is a cluster and I’m just speculating.

          Now there is disagreement about whether a “responsible person” includes your subordinate trustees or not – if it’s just the trustee, then for me it’d be my fingerprints and picture – the only change there would be after my demise.

    • I am a law student (not an attorney yet), but I have taken Administrative Law. For reference to the final rule as I explain, see https://www.atf.gov/file/100896/download

      The Answer: Under the new regulation, trustees (and new “responsible persons”) can be added without having to submit a 5320.23, unless there is sufficient change in control or ownership of the trust under applicable state law that it is considered a new entity (which would be a transfer). The final rule explicitly says this. See pp. 206-209. Note, however, that the new responsible persons will have to submit a 5320.23 for any other NFA items made by/transferred to the trust after they are added.

      The Explanation: The actual final rule is on pp. 239-248. It only provides for procedures for when an NFA item is made or transferred. When using a trust, it is the trust that owns the NFA item. Adding a new trustee is not a transfer because the trust still owns the NFA item, and thus there is no transfer to another entity or person.

      The ATF could not require such a rule even if it wanted to. The NFA gives it rulemaking authority, but any rule it issues must be consistent with the underlying statute (the NFA). The most important provisions here are 26 U.S.C. 5812 (transfers) and 5822 (manufacturing). Those provisions only require approval and the tax for transferring or making NFA items. Because adding a trustee is not a transfer (as discussed above), the statute does not apply, and no regulation promulgated under the NFA can either.

      This leaves a loophole where trustees can be added after the manufacture/transfer without having to go through the extensive paperwork/fingerprinting/etc. That is what the Administration gets for trying to rig what is really a tax statute into a gun control measure.

      • You’re ready for the practice of law. That was my conclusion exactly. Took me 10 minutes to find the final rule in that 260 page abortion and then 3 minutes to find the same loophole you identified. Think of the market for professional lawyer trustees who set up trusts, serve as trustee, accomplish the transfer, appoint a co-trustee and then resign.

      • Correct. Even though Ryan talks about what the ATF intended to do with this rule, what they have created is an easily defeated system. Between the definition of “responsible person” that requires power or authority to direct the management and policies of the trust and the ability to add and remove trustees at will, it will be just as easy to use trusts for one of the only remaining benefit; making sure that family and friends can use your NFA items without you being present and avoiding the constructive possession traps.

  2. I have to disagree with Mr. Cleckner’s conclusion. I’m an attorney and have drafted numerous gun trusts along side David Goldman. The definition section states that in order to be a responsible person you must FIRST have “the power or authority to direct the management and policies of the trust”. It then goes on to say that in the case of a trust, you SECOND have to have the “capability to exercise” the power referenced FIRST, and then THIRD, you have to have the ability to possess the NFA item under state law. The regs are strictly construed under federal law. They are written in the conjunctive (and) not the disjunctive (or). Therefore, if you have a lifetime beneficiary with the ability to POSSESS under state law, but not the “the power or authority to direct the management and policies of the trust” you don’t appear to be a “responsible person”. This is a major flaw written into the definition by the bureaucrats. If there are other lawyers familiar with the rules of statutory construction that disagree with me, I’d love to hear your rationale. I’m often wrong, but never in doubt.

    • I agree with your interpretation. In order to be a responsible person, one MUST “have the power and authority to direct the management and policies of the trust or legal entity.” A person merely having the right to possess NFA items under a trust but lacking any management rights or authority is NOT a responsible person.

      • Can the trust be written so as to have all members of the trust have a vote in in the disposition of the items in the trust?

        • A “Trust” doesn’t have “members”. That’s the point. It is an entity [a Person] unto itself. It has [a] “Trustee(s)” that speak and do for-it during the life of it. It also has beneficiaries.

          Depending how the Trust is written, a Trustee can appoint other Trustees through relatively informal means, and there can be, and usually is ‘successor trustees’ that pick up where previous Trustees have left-off.

          If the government can (and does attempt to) regulate who has firearms, then it is only protecting itself.

    • I see exactly where you are coming from. If this were statutory language, and not part of an executive summary from the ATF about their intent in a 200+ page letter, I would agree with you 100%. In fact, on the face of those specific words alone, there is no other way to interpret the issue. Those words, however, are not the formal/legal definition of a “responsible person.”

      I am coming at this issue trying to look at the big picture. I will admit that my inside knowledge of this issue has likely swayed my opinion. ATF’s motivation behind this change is to prevent individuals who would otherwise be prohibited from individually possessing an NFA firearm from joining a trust and thereby possessing potentially the exact same NFA firearm.

      By only requiring the settlor of a trust to complete the paperwork, and not each of the trustees/lawful possessors, the ATF will not have achieved their goal. The ATF is trying to ensure that every potential possessor of an NFA firearm is vetted and that each CLEO is notified of the potential possession of NFA firearms in their jurisdiction.

      If the words in the executive summary from the ATF were poorly drafted, it is a safe bet that the final version will more clearly accomplish the ATF’s goal.

      • I think we all clearly understand what they tried to do. I find it hilarious that they failed to do it. I’m not strong on administrative law, but are they really able to change the language after they promulgate it? Isn’t this process rather rigid?

        • It is, which is why I find it very curious that these latest two “rulings” from the ATF (this one and the one concerning FFL reporting requirements for lost/stolen firearms in transit) are in this unique format.

      • In other words, they tell us exactly what the definition of a “responsible person” is. Can they really just change it before the rule gets published? I don’t care what their intent is. I am a lawyer, and the quoted language for the definition of a “responsible person” leaves a hole big enough to drive a semi-truck through it.

        • Agreed.

          The language of this “rule” posses some problems. This looks like a rule, smells like a rule, and is clearly going through the rule making process but instead of standing on its own like their other rules, this document says that it is a proposal to amend current regulations.

          I’m interested to see the actual language in the amended regs – this may still be good fodder for you similar to legislative history.

        • Or they are terrible scriveners, and they just wanted us to identify the flaws for them before they published it. I’m putting my tinfoil hat back on now.

        • Ryan,

          I went back and read through the “Final Rule” portion of the ATF’s release. That’s the language that is used for the definition of “responsible person.” How can the ATF change the language again prior to the final rule being published? I don’t think they can do that.

      • But isn’t this a reactionary measure, only accomplishing it’s goal of checking everyone upon a new item being transferred to the trust, not to mention not affecting current trusts that could continue onward w/o adding additional items? I could be completely wrong, but by placing the check only when you are doing a new transfer doesn’t that open up the ability to have an item transferred, with the correct responsible persons checked, then after add an individual that would not pass the check to the trust? Following that down the line, if you wanted to add another item, you would only need to remove the person in question from the responsible persons for as long as to complete the form+photos+prints on the remaining persons, then add back the “prohibited individual” after submission.

    • @Craig and @ Jim Jones: I think ya’ll have a good argument but it is going to take some legal effort to clarify this poorly written rule. Cleckner is basing his interpretation from his assumption of the ATF’s goals and appears to me to be advising all who read this article (and his own clients) to play this rule as safely as possible. To error on providing too much information rather than run afoul of the heavy federal penalties.

      To that end,

      1) Do you think the goal of the ATF is to run a background check on everyone who may possess the Trust assets?
      2) if so, even if the ATF loses the lawsuit that clarify’s the rule to limit “responsible person” to only management level trustee, how quickly do you think the ATF will revise the rule to make it say what they want it to say?
      3) After presenting both arguments and thoroughly educating a client, what would you advise they do? Only send in the manager trustee’s information for a background check (risking being the test case) or have them send in everyone’s information?

      Finally, what do you think are going to be the rules regarding adding and removing special gun trustees (sub-trustees with only the power to possess) to a trust? For example, a managing trustee could remove all other responsible persons before a purchase, then after the trust takes possession, the trustee could add the special trustees back). Will every new addition require another “responsible person” submission?

      • We all understand very clearly what the ATF wanted to do with this rule. However, as a lawyer, things like “loopholes” don’t scare me. We make a living helping people navigate these holes, especially when it comes to firearms. If the rule comes out with that language, then the ATF failed completely to accomplish their goal.

        It doesn’t matter what they intended the rule to be if the language published says something completely different. Statutory interpretation is only necessary if the language is ambiguous. The language is not ambiguous at all in this case. What I don’t know is this: is it possible to draft trusts giving beneficiaries access to the NFA items without giving them ANY authority over the trust. If so, the ATF shot themselves in the foot, and I would find it comical if it weren’t so sad.

        From what I see, they are going to have to go back to the drawing board, which could take another year or so. In the meantime, many folks will continue to be able to use trusts if their trust is properly drafted.

  3. Another obvious question, for those that have a trust now but see that there aren’t any benefits to keeping it, how do you go about transferring items from your trust to your person? Is that another $200 tax per item and paperwork filed to the ATF?

    • There won’t be some retroactive effort to ‘fix’ existing trusts, so I don’t believe the benefit of an existing trust has diminished. What would possibly be the advantage of transferring from the trust to an individual?

  4. I’m sorry to be flippant, but did you graduate from a third tier toilet? It says plainly twice in there that a “responsible person” must have “the power or authority to direct the management and policies of the trust” AND have the ability to possess/transfer, etc. Therefore, if you draft your trust in a way that only one person has the ability to direct the management and policies of the trust (only one person gets to add items, modify language, etc.), and others only have the right to possess, then those other folks are not “responsible persons.”

    • That’s pretty much exactly how I want my trust drafted, for perfectly plain reasons. The notion that my wife should not have access to any NFA items that may reside in my gun safe is asinine and against my personal wishes. My primary reason for having a trust in the first place would be to avoid accidental felonies that may stem from sharing my guns with her.

      I’d also like to add my brother to the trust as both a beneficiary and an “authorized possessor.” I do not need or want him to have any control over the trust. He happens to be pretty anti-gun, so there’s virtually zero chance that he would ever acquire an NFA item much less want to add one to the trust. I would simply like him to inherit my gun collection if/when my wife and I both pass so that he can sell it off and benefit from its value. I would also take comfort in having him available as a custodian of my firearms if I go out of town for an extended period.

      Would that make anyone but me a “responsible person?” Based on the language quoted above, I’d think not. That would be great if that’s the case. Although it’s not a large burden for my wife to deal with any paperwork if I add new NFA items to the trust, it would be a PITA for my brother, whom I’m sure would be happier not being involved in any way unless / until the inheritance situation plays out (or in some twisted scenario like a house fire while I’m out of town, where he could come collect the trust’s NFA items instead of having some government sticky fingers walk off with them for “safe keeping”).

      • ^^^^ THIS
        This is the exact same reason that I have a trust, except my brother wants to play with the NFA toys, too, which is perfectly fine with me. Accidental felonies and custodial duties are my main concern. At this point, though, the headache is quickly diminishing the benefits. As of now, I’m not completely sure what I’m going to do with my trust and toys…. And the Mystic X I was planning on adding to the collection.

  5. The bigger question the minions don’t ask is why citizens need a trust for their arms in the first place. Is it because regulations required destruction of your arms upon ones demise? If so perhaps efforts should be directed at removing those regulations instead of spinning ourselves into knots over the lying Master and Commander in Thief.

  6. Here is why I want a trust and I have yet to have gotten a straight answer about if you can do this without a trust. I want my wife to be able to use my suppressor with out me. And in case of death. I guess I’ll have to wait or get one now. how are they going to handle the 100,000 trust established just last year? This whole thing is such a joke. The ATF I bet tries putting this off until the next president.

      • It’s worse than that – if your wife has access to the suppressor you are in trouble if she is not on the trust…

    • You have to be in “direct” control as an individual, or an illegal transfer has taken place. In other words, your wife can’t go hunting without you present(you can be on the same piece of property), if she wants to take the silencer. A trust allows her to posses it whether you are there, or not. Assuming she is listed on the trust.

  7. “It is not worth debating whether these two provisions are an “and” (both required) or an “or” (only one or the other required) requirement because they both cover the same type of “member.” Namely, if the person may lawfully possess an NFA firearm on behalf of the trust, then that person is a “responsible person.””

    No, no, no, no, and no. Read the rule again:

    The term “responsible person”… includes “those persons who have the power and authority to direct the management and policies of the trust or legal entity to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm. [T]hose with the power or authority to direct the management and policies of the trust include any person who has the capability to exercise such power AND possesses … the authority under any trust instrument to … possess … a firearm for or on behalf of the trust.”

    Under that rule, anyone who does not “have the power and authority to direct the management and policies of the trust or legal entity” is NOT a “responsible person.” Therefore, a trust that is drafted in a way that only a singular person has the ability to modify the language of the trust, add or transfer items from the trust, means that only THAT person will be a responsible person.

    I do not see where you get your interpretation at all.

    • As an attorney, I am troubled by the word “includes,” as in “a ‘responsible person includes . . . ”

      “Includes” may not be a word of limitation. So while a “responsible person” includes those persons generally described, I’m not sure that only those specific persons fit within the broad rubric.

      If the drafters wanted to limit the phrase “responsible person” to include only the grantor or settlor, trustee(s) and beneficiaries who might possess the trust corpus, why wouldn’t they just say so?

      Is the draftsmanship that bad, or that good?

      • This is so poorly worded, it’s not even funny. You have a good point that the “includes” merely gives options as to whom may be a “responsible person” and is not an exhaustive list. Nonetheless, if the rules states nothing else, then it is going to require court assistance as to whom may be considered a responsible person. That’s probably not something the ATF should want to bet the house on.

        • If the Abramski case proves anything, it’s that the law is what the ATF says it is. Nothing more and nothing less.

  8. This removes the the benefits of a trust only from the 1) single person who 2) lives in a jurisdiction in which the CLEO would never sign. For that person a trust is now useless. But for anybody whose need for a trust is that multiple people in their family be able to use the items, these new rules increase the PITA factor but do not remove the utility of a trust.

      • Yes but if you ever no longer single or anyone else has access to your NFA storage; a trust will protect you from committing a crime because you can add that person to the trust. Based on what I have been reading, you don’t have to notify the ATF if the change until you add a new NFA item.

    • Further down in the 200+ pages of muck is an interesting tidbit that could take a lot of the sting out of the rounding up prints and pictures.

      “§ 479.63 Identification of applicant. -> (iv) ->(c) If the applicant entity has had an application approved as a maker or transferee within the preceding 24 months, and there has been no change to the documentation previously provided, the entity may provide a certification that the information has not been changed since the prior approval and shall identify the application for which the documentation had been submitted by form number, serial number, and date approved.”

      If you don’t change anything and buy and have something transferred every 2 years you just cert that everything is the same and bypass the scavenger hunt for prints and photos. While a pain, it could be a one time one as long as you keep adding items to your trust, which most of us do anyway.

  9. If it’s only for “trust managers” it completely defeats the purpose of the ruling as the ATF seeks to background check EVERYONE listed on the trust that will be handling said firearms in a responsible manner.

    • I don’t even understand how they could screw up this bad. It took me about 5 minutes to see the gigantic hole they left in their plan. Are they really that stupid? Is it because these rules are written by people who aren’t gun owners and don’t understand how we think? It’s hard to believe in those grand conspiracies when government incompetence is this glaring.

      • Or it could b that they didn’t screw up. Maybe someone on the inside isn’t quite so supportive of either the administration or their policies? Imagine someone who shares our view choosing the language and it makes a little more sense.

  10. Can a trust be written so that when a person reaches legal age and is not disqualified to own then be able to use devices in the NFA trust?

    I’m thinking children inheritance, here…

    • My 7 year old is the beneficiary on my trust, as soon as she is 18, she will be added as a “responsible person”.

    • Red is right; the wording in my Trust entitles my children to be possessors of Trust property when they reach age 21, even though they are currently 11 and 3 (and the 3 year old didn’t exist when the Trust was executed)

      The only action needed is the completion of a “subordinate Trustee” form when they are of age which in my Trust is like a mini 4473, I’m not a felon, etc etc sign and date at the bottom. Yours may be different.

  11. Who is the responsible person on my trust? Just me?

    There’s me (Settlor, Trustee)
    A friend in Nevada (Successor Trustee)
    My fiancé (settlor beneficiary)

    • Yeah, I’m trying to figure that out as well. I’m the settlor/trustee, and I have a successor trustee who has instructions to distribute the assets of the trust any way she sees fit, even if she chooses to keep them or assign them to her heirs. There are no NFA items in the trust-budget hadn’t allowed a can purchase yet. My primary reason for creating the trust (aside from the eventual purchase of a suppressor without CLEO signoff) was to remove the firearms from my estate as my only heir (a nephew) would have absolutely no idea what to do with them.

  12. What I want to know is, if the Hearing Protection Act passes, and suppressors are no longer an NFA item, what happens to suppressors that were part of a trust?

    I’d like to own a suppressor for my ARs, but at this point, with this new announcement and the Hearing Protection Act in the pipeline, I think I’ll just hold off a bit longer.

    • Wouldn’t they still be owned by the trust, just no longer regulated by NFA? Perhaps the trust could be amended to disposition them to an individual owner. Such a disposition wouldn’t require a tax stamp, but per the language of HPA I believe it would be treated like a long gun transfer (maybe a NICS check if it passes state lines).

      That’s my guess, anyway. And IANAL.

      • Every firearm in my possession is owned by my Trust – this is a good idea for beneficiary purposes. So the Trust is not just for NFA items, it’s the whole enchilada. I’m making a wild assumption that if Silencers are removed from the NFA that they’ll just become GCA firearms and their associated tax stamps will be void.

  13. What if a Hollywood studio makes a totally awesome gun flick using full-auto AKs, mini guns, and silencers? Does the corporation, aka: legal entity, that owns the NFA items need to now have the actors file their photos and fingerprints and submit to a NICS check? Do they have to go through this process for each NFA gun they possess? Do they have to notify the CLEO in every town where they possess an NFA item while filming? Just wondering. Obamski has lots of Hollywood friends who might not like that.

  14. So, it seems the form and fingerprints are required when a trust acquires a new NFA item. But what about when the trust is amended? Couldn’t you just:

    1. Create a trust with only yourself for a single NFA item (e.g., “Speleo’s Gemtech Halo Trust”) and submit your forms.
    2. Do the paperwork and prints bit.
    3. Amend the trust to make everyone you know an authorized user.
    4. Repeat 1-3 for the next item, using a new trust (e.g., “Speleo’s AR-15 SBR Trust”)….

    Does #3 trigger more paperwork or prints, or does it neatly avoid all of the red tape?

    • yes. This was precisely my point in an earlier post. The 40 1P comments state specifically that they are not requiring a new background check for any new responsible people on the trust after the initial application. I normally amended my trusts to add additional co trustees anyway. In the future I will make sure that amendment is done after the acquisition of the NFA item is completed.

  15. A trust isn’t just about skirting the CLEO permission slip. If I understand things you’ll also need a trust if someone else has access to the location were you store your NFA items. If your wife knows the combination to the safe where you keep your SBR you need a trust and she needs to be listed on it.

  16. The term “responsible person” for a trust or legal entity includes “those persons who have the power and authority to direct the management and policies of the trust or legal entity to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on behalf of, the trust or entity. In the case of a trust, those with the power or authority to direct the management and policies of the trust include any person who has the capability to exercise such power and possesses, directly or indirectly, the power or authority under any trust instrument, or under State law, to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for or on behalf of the trust.”

    So, the new background check requirement applies to SBRs acquired by a trust but not suppressors?

  17. What if amend the trust 3 months after getting my form 4 approved and add a new co-trustee or two. What then? The new rule is silent on this. Is anyone else seeing anything I’m missing? The trust is a living legal entity and it can be amended anytime as many times as you want. There’s no provision to check new trustees after the form 1 or 4 is approved. Makes this rule toothless.

    • From Josh Prince: “Changes to RPs: Another issue that ATF was considering was whether there would be an obligation on part of the fictitious entity to submit notification, within 30 days, of the change in those who constitute RPs for the entity. See pages 206 – 209. The final rule, on page 209, declares, “The Department is not requiring, in this final rule, that new responsible persons submit a Form 5320.23 within 30 days of any change of responsible persons at a trust or legal entity.” However, if a new application (Form 1 or Form 4) is filed, clearly the updated documentation must be filed with ATF for all RPs.”

  18. My advice going forward? Just transfer the firearm to yourself and tell your buddy to buy his own – it’s good for our industry.

    —————————

    You mean our industry can build Full Autos for sale to us, and we should buy them to help build the industry, really?

  19. Let’s see…how should I put this? You’re all fucked. Or you’ve been repeatedly fucked by the Fedgov so many times, you are just willing to bend over and take it in the keester and move on. Having a party and inviting clever lawyers to argue what other clever lawyers are trying to do, is merely explaining how to avoid being hit by the sliding deck chairs on the Titanic. The reality is, the Fedgov is only proposing these kinds of restrictions because they’re not afraid of us, not any more. They haven’t been afraid of the public/subjects, since the early 1900’s, and expressly since 1934 on. The moment we were restricted from possessing firearms capable of affecting a legitimate armed revolt against a superior armed government tyranny, the die was cast. It has been a downhill slide from there, with brief moments of cleverness; from the same highly educated lawyer class running the Fedgov tyranny, about how we can do a “clever” legal two-step to get around around the “long train of abuses and usurpation’s” of unwarranted, and unconstitutional infringements of our rights. Thanks, but I don’t think a new dance lesson is the answer. If we’re not prepared to melt the switchboards of the capitol phone system like we did over amnesty for illegal aliens, then we should expect, and I guess, reluctantly and legally succumb to ever more brutal defiling by the Fedgov. Frankly, I’m not interested learning a newer, more clever dance step to help me avoid the reality of the tyranny of which I dare not speak….or act against it. Being clever legally? It’s just going along to get along. So how’s that been working out…..over the last 100 years?

  20. I have a standard trust to protect my wife and kids should I die. Added benefit is my NFA items are included as part of the Schedule A.

    How does this scenario play out? I die. My wife inherits the NFA items as a beneficiary on my trust.

    She already has her own trust established that the kids are also beneficiaries of. Can she, with my death and being the beneficiary of my NFA items, place those NFA items to which she is now a legal possessor onto her trust’s Schedule 1. Technically, the tax stamp is associated with the name of my trust not hers but they are now legally hers and I see no reason she cannot place her legally own NFA items onto her trusts Schedule A.

    If not, how do we ensure that the NFA items continue to legally stay in the family?

    I am asking this question, because I am considering removing all of the responsible members on my trust because they live in multiple states…..like NJ (ugh!!!) which makes the new process a pain if I continue to add NFA items. Unfortunately, I do not have a sole “gun trust” I have a trust that covers my business, financials, property, and NFA items, so I really need multiple responsible persons but am hoping that if I move everything to my wife as a beneficiary, that we can add all the responsible people we need to manage our estate to her trust (big assumption is I die first).

    • Not giving you legal advice here, but transfers between trusts are “transfers” for purposes of the NFA. While the BATFE does currently allow a Form 5 transfer if the firearm is registered to a trust or an individual and being transferred to a specified beneficiary, there is no regulation that the BATFE must do this. Hence, the BATFE may (1) either allow the tax free transfer in a trust/individual scenario or (2) may decided not to allow a tax free transfer for anyone. Form 5 allows transfer out of one trust to a beneficiary in the event of death, but where you transfer between trusts and not to an individual beneficiary, Form 5 does not apply under any current federal regulations. A couple of thoughts here:

      1. I NEVER EVER use a schedule A on my NFA trusts b/c you MUST send the complete trust in when doing transfers and therefore you’re creating a “list” of your firearms and sending it to the government every time you do a transfer. There’s no need for a schedule A on any trust. Why my lawyer colleagues continue this practice eludes me.

      2. You should NEVER put a NFA item into a standard revocable trust. Why? B/C the trustees fiduciary duties require him to do certain things irrespective of federal law. So when you die, the successor trustee must transfer to the beneficiary. What if the beneficiary is a temporary or permanent prohibited person? Does the trustee complete the transfer or refuse to and breach his fiduciary duty?

      You need a lawyer drafted / specific purpose NFA trust. Feel free to contact me for more information. craig@dhhlawfirm.com

      Craig.

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