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Suppressors Gun Trust Laywer's comment on the ATF 41p proposed rule
- Thread starter mrX
- Start date
I've been trying to read a lot of stuff on this and get a grasp on it. Problem is, is that I still don't understand what it is going to do to us with trusts for our NFA stuff. I really wish somebody would be able to put it into laymens terms as to how it could ultimitely affect us.
The short version of the proposed rule ATF 41P is that ALL responsible parties for trusts and corps will require prints, photos, and CLEO signoff when submitting forms for NFA items (ATF Forms 1,4, and 5). 'Responsible party' is broadly defined in the proposed rule to include all trustees and beneficiaries. The increased popularity of trusts is due to many CLEO's refusal to sign off.
so lets say when i move, and it is to an NFA unfriendly CLEO, does he have to be notified that i have an NFA trust? or if an NFA unfriendly CLEO takes office where i currently live?
when i sent in my more recent batch of 3 F4s in mid september, i asked the dealer what he might know about the new rule. he told me that he talked to his ATF guy, whoever that might be, and was told that it was business as usual and that the existing forms in the backlog would more than likely be grandfathered in and the new forms being submitted AFTER the new rule goes into effect would be the one's for the new BS.
is this true or not, know one knows. like the dealer said, no one will know for sure until after the law is in place.
Please visit the Website for commenting on the ATF 41P proposal . Leaving specific comments including names and location of your CLEO's refusal, and citing this as the reason for you using a trust for NFA items are encouraged. If you have a chance to read any of the GunTrust draft, one will appreciate that his arguments are more effective with more specific information.
The proposed rule does not address these issues - and many others - at all. These type of comments are encouraged, since it is my understanding that the ATF, as part of the rule making process, will need to consider and respond to the comments.
It's yet to be determined if the ATF will follow the necessary procedures or ram this through...
Leaving comments is about the only option open to us, other than whining about it on internet forums.
As a general rule, once you have received your approved form 4 you can move anywhere you would like as long as there are no state restrictions. The CLEO signature is only required for initial ATF approval. Once the NFA item(s) have been transferred you have no obligation to tell anyone locally you own these items in a new jurisdiction (except in states where there are restrictions).
If you are moving within the same state you are not required by the ATF to do anything. If you are moving to another state file the 5320.20 form 30 days prior to the move.
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UNLESS THIS PASSES!!!!!.... the new rule says ANYTIME you add someone new, like a new child or wife to the trust, you need to resubmit...
Correct me if I'm wrong, but if you, as the trustee, move the NFA items to a different state, you notify the NFA branch of the new storage location, but the trust itself doesn't necessarily get moved, it's a creature of the state in which it was created and it's its own legal entity distinct from the Grantor and Trustees.
This brings up an interesting question however. If the trust is created in, say, Montana, and then the trustee moves to, say, New Mexico, what is the state of residence for the purposes of the Form 4 and the 4473? Since the trust exists in some sort of nebulous dimension within the state where it was created, and may not have a physical address or mailing address in that state, is it the state of residence of the trustee making the application that must be used? Can a trust buy an NFA item from a dealer not in the state where the trust is organized, or must it have the item transferred to an NFA dealer in that state?
This question has been haunting me. I have 7 form 4s that were sent in at the beginning of this month on my trust. I think there might be some legal precedent here is regards to ex post facto under The Constitution. I have not heard it discussed yet but here is what Wikipedia has on ex post facto in regulatory changes:
....."In administrative law, federal agencies may apply their rules retroactively if Congress has authorized them to; otherwise, retroactive application is generally prohibited. Retroactive application of regulations is disfavored by the courts for several reasons. The courts uphold retroactive regulation where Congress has expressly granted such retroactive power to the agency, as they did in Bowen v. Georgetown University Hospital."..........
So the question is does the ATF have retroactive authority granted by Congress? Maybe someone here will know. Or does this excerpt mean that Congress grants the power to retro on a case by case basis depending on the proposed change.
Also correct me if I am wrong but after any rule change is submitted to the Federal Registry it goes into effect 30 days after the date of submission. So after the comment peroid there is supposed to be a review peroid to review the comments. Even if there is not a review peroid and the rule is adopted we would be looking at an effective date in early January.
So anything submitted before the rule change should be processed under the old rules. The proposed rule says "any new applications". Applications received before the rule change would be old applications......at least that's my wishful thinking....
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