ATF Rule 41F

On January 4, 2016, the U.S. Attorney General signed ATF Final Rule 41F, Machineguns, Destructive Devices and Certain Other Firearms; Background Checks for Responsible Persons of a Trust or Legal Entity with Respect to Making or Transferring a Firearm (“Rule 41F”), amending the regulations regarding the making or transferring of a firearm under the National Firearms Act (“NFA”). After Rule 41F was enacted all individuals who are applying to purchase or transfer NFA Firearms with or without a NFA Gun Trust are required to send in photo cards, fingerprint cards, the Responsible Person’s Questionnaire Form 5320.23 (“RPQ”) and ATF Form 1, 4 or 5, as applicable. The goal of Rule 41F is to ensure that the identification and background check requirements apply equally to individuals, trusts, and legal entities who make or receive NFA firearms. Rule 41F became effective on July 13, 2016.

It is important to clarify that the Bureau of Alcohol, Tobacco, Firearms and Tobacco or (“ATF”) does not have to approve all gun trusts, but only those that contain NFA Firearms. NFA Firearms require a Tax Stamp, which is proof of registration and include: fully automatic firearms (“machineguns”), rifles and shotguns that have an overall length under 26 inches, rifles with a barrel under 16 inches, shotguns with a barrel under 18 inches, and firearm sound suppressors (“silencers”), “destructive devices” (explosives and firearms over .50 caliber, other than most shotguns) and revolving-cylinder shotguns and one semi-automatic shotgun. (“NFA Firearms”)

Rule 41F required responsible persons of such trusts or legal entities to complete RPQ and to submit photographs and fingerprints when the trust or legal entity files an application to make an NFA firearm or is listed as the transferee on an application to transfer an NFA firearm. Further the RPQ must be forwarded to the Chief Law Enforcement Officer (“CLEO”) of the locality in which the applicant/transferee or responsible person resides. This was a change to the prior requirement of certification by the CLEO.

In the case of a trust, a “Responsible Person” is the person with the power or authority to direct the management and policies of the trust. This includes 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. Here are a few examples of a “Responsible Person”, a settlor/grantor, trustee, co-trustees, partners, members, officers, board members, and beneficiaries (if the beneficiaries have the capability to exercise any of the powers or authorities enumerated above).

If you want to transfer your NFA Firearms, please note that only previously registered firearms may be lawfully transferred. ATF will not approve the transfer of an NFA Firearm unless it has been registered to the transferor in the National Firearms Registration and Transfer Records (“NFRTR”). NFA Firearms may only be registered upon their lawful making, manufacture, or importation, or upon the transfer of firearms already registered. In general, unregistered firearms may not be lawfully received, possessed, or transferred.

In addition, Rule 41F added a new section to address the possession and transfer of firearms registered to a decedent. Distribution of estate firearms is not treated as a voluntary transfer under the NFA. Rather, they are considered involuntary transfers by operation of law. Under this concept, ATF will honor state court decisions relative to the ownership and right to possess NFA Firearms. So, when state courts authorize the distribution of the estate firearms to decedents lawful heirs, ATF will approve the distribution and registration to the heirs of NFA Firearms, if the transactions are otherwise lawful.

Should an estate contain NFA Firearms not registered to the decedent, these firearms are contraband that may not be lawfully possessed or transferred. Where these are found within an estate, the executor, personal representative, or administrator should contact his/her local ATF office and arrange for their disposal.

In closing, these types of trust applications with the ATF require the examiner to perform several additional steps of review as compared to an individual application. For example, the examiner must read each trust document to ensure it is a legitimate trust. The examiner must also read each trust document to ensure every responsible person to the trust submitted the RPQ and required documentation. The average processing time is two to six months. Though these trust applications can take longer to process; when completed, you will have peace of mind for yourself. It also allows those you wish to have use of your firearms now and for future generations to come. We can help discuss this with you and decide if it is in your best interests.

 

Glossary of Term

ATF – The Bureau of Alcohol, Tobacco, Firearms and Explosives https://www.atf.gov/

ATF Form 1 – Application to make and register a firearm https://www.atf.gov/file/11281/download

ATF Form 4 – Application for tax paid transfer and registration of firearm https://www.atf.gov/file/61546/download

ATF Form 5 – Application for tax exempt transfer and registration of firearm https://www.atf.gov/file/11371/download

CLEO – Chief Law Enforcement Officer – Visit your local Police Department for more info.

Form 5320.23 – National Firearms Act Responsible Person Questionnaire https://www.atf.gov/file/107266/download

FD-258 – Fingerprint card – https://www.atf.gov/node/30071

Final Rule 41F – Machineguns, Destructive Devices and Certain Other Firearms; Background Checks for Responsible Persons of a Trust or Legal Entity with Respect to Making or Transferring a Firearm, amending the regulations regarding the making or transferring of a firearm under the National Firearms Act (NFA) https://www.atf.gov/rules-and-regulations/final-rule-41f-background-checks-responsible-persons-effective-july-13

GCA – the Gun Control Act of 1968 placed “destructive devices” (primarily explosives and the like, but also including firearms over .50 caliber, other than most shotguns) under the provisions of the NFA https://www.atf.gov/rules-and-regulations/gun-control-act

NFA – National Firearms Act https://www.atf.gov/rules-and-regulations/national-firearms-act

NFRTR – National Firearms Registration and Transfer Records – https://www.atf.gov/file/58201/download

RAP – Rule Against Perpetuity https://en.wikipedia.org/wiki/Rule_against_perpetuities

Responsible Person – Persons 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. https://www.atf.gov/rules-and-regulations/final-rule-41f-background-checks-responsible-persons-effective-july-13#Who%20is%20a%20Responsible%20Person

SBR – Short Barrel Rifles https://en.wikipedia.org/wiki/Short-barreled_rifle#:~:text=Short%2Dbarreled%20rifle%20(SBR),less%20than%2016%20inches%20length.

Tax Stamp – A tax stamp is the proof of registration of your NFA Firearm https://www.silencershop.com/form-4-tax-stamp.html