We have had several phone calls from our gun trust clients regarding ATF Rule 41F which will go into effect on July 13, 2016. For those persons whose Form 1 or Form 4 applications are pending prior to July 13th, there should be no effect on your purchase and application.
Beginning on July 13, 2016, anyone who submits their application (with or without a gun trust) to the ATF must submit the application with fingerprints and a 2” x 2” photo (like a passport photo) of all “responsible parties.” The photo must have been taken within one year prior to the date of the application. Each responsible party must also complete ATF Form 5320.23. In addition, you must provide a copy of the application and ATF Form 5320.23 to your local chief law enforcement officer (CLEO). Speaking on the trusts we prepare in our office, “responsible parties” are the Grantors and Trustees. Beneficiaries are not considered “responsible parties” because they are not given the authority “to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on behalf of, the trust.” (Rule 47F, § 479.11 Meaning of terms)
If you are using our Trust and if you submit a subsequent application within 24 months of ATF approval of Form 1 or Form 4, the responsible persons should not need to resubmit fingerprints and photographs unless the trust has been modified within that time period.
If you have any questions regarding this new Rule, feel free to call our office.
As of July 13, 2016, the new ATF Rule 41F went into effect. This new rule applies to all “responsible persons” who are completing a new Application for the purchase or manufacture of a Class 3/Title II weapon. At this point, there has been no clarification as to the term “responsible person.” However, under “Definitions,” on Form 5320.23, it states: “Examples of who may be considered a responsible person include settlors/grantors, trustees…”
You will need to submit the following to the ATF with your Application (Form 1, 4 or 5): (a) two fingerprint cards; (b) two 2” x 2” photographs, and (c) two Responsible Person Questionnaires (Form 5320.23). In addition, the completed Application and Form 5320.23 must be sent to your Chief Law Enforcement Officer (“CLEO”) advising them that you are in the process of purchasing the Class 3/Title II weapon. The CLEO does not need to sign this form.
Rule 41F even applies to anyone who has previously created a gun trust and has purchased Class 3/Title II weapons under the trust. Once you purchase a Class 3/Title II weapon under Rule 41F and submit fingerprints and photograph, and if you purchase another weapon within 24 months, you do not need to resubmit fingerprints and photo. You will, however, need to complete ATF Form 5320.23 and provide it along with the new Application to your CLEO. In addition, if a Co Grantor, Co-Trustee or a beneficiary who is 21 years of age or older lives outside of the jurisdiction where the trust items are held, that person will also need to send a copy of the Application and ATF Form 5320.23 to their CLEO. Feel free to call our office should you have any questions regarding the new Rule.
Even with the new requirements of ATF Rule 41F, there are still significant benefits to purchasing an NFA Trust. (1) You may name other individuals as Co-Trustees so that they are permitted to use the Class 3/Title II weapons. Note that if you purchase the weapon individually, no one else is permitted to use item. (2) You will name at least one beneficiary to receive the items upon your death or incapacity, thereby passing the items to the person YOU designate. (3) The named beneficiary will complete ATF Form 5 and will not have to pay the tax stamp to transfer the items into their name.
FIRPTA is a tax law passed in 1981 that requires foreign persons to pay U.S. income tax on the gains they make from selling U.S. real estate. The duty is on the U.S. national buyer (and not the settlement agent) to deduct and withhold a portion of the sales price and report the sale to the Internal Revenue Service (IRS). Buyers can withhold less than the statutory amount if they obtain a determination of the specific amount of tax owed by the foreign national using IRS Form 8288-B. In most cases, the settlement agent is the party that actually remits the funds to the IRA, but the buyer is held legally responsible. Additionally, until the tax is paid in full, the government obtains a security interest in the real property.
We invite you to peruse our website where you can find information on Firearm Trusts that we prepare, designed to address federal and Florida State law. In most cases, our firm charges a flat fee (including mailing costs) for a Firearms Trust (see our webpage: https://davisbastalaw.com/practice-areas/gun-trusts/).
If you plan to purchase certain types of items, including but not limited to machine guns, sound suppressors, short barreled shotguns, or short barreled rifles, is regulated by federal law. Placing such items in a trust is a convenient and popular method of holding these items, which is a type of ownership recognized in Florida.
We caution owners of class III items when relying on boilerplate forms or software designed to create trusts. You should ensure that your trust and any trust done for your client is properly drafted to deal with any special issues involved with items regulated by the NFA. Our law firm practices in the area of real estate, which encompasses estate planning, and has been drafting gun trusts since 2008. When the NFA is violated, the individuals who violate the Act may be subject to substantial fines, criminal charges, and forfeiture.
If you would like any information or to discuss our services, please do not hesitate to contact us at anytime.