Updated July 13th, 2016 – ATF 41F Affecting NFA Gun Trusts
ATF 41F was published on January 15, 2016 and became law on July 13th, 2016. ATF 41F will significantly affect the transfer of newly acquired NFA firearms.
Despite what you may have heard or read, NFA firearms are still legal to acquire and own. NFA Gun Trusts are still legal and in most cases the best vehicle for NFA firearm ownership and possession. NFA Gun Trusts allow others to possess and use NFA firearms legally and estate planning provisions ensure faster, hassle-free vesting of NFA firearms to your heirs.
Any new applications for transfer of a NFA firearm (ATF Forms 1, 4, and 5) will require all “Responsible Persons” of your NFA Gun Trust to submit fingerprints, identifcation photos, complete a Responsible Persons Questionnaire, and submit documents to the Chief Law Enforcement Officer (“CLEO”). A Responsible Person is anyone having the capacity to possess or transport an NFA Firearm.
The ATF has released a FAQ giving some clarity regarding 41F and the new Forms (Forms 1, 4, 5 and the Responsible Person’s Questionnaire): https://www.atf.gov/rules-and-regulations/final-rule-41f-background-checks-responsible-persons-effective-july-13
As part of our “commitment to excellence,” The Kim Firm offers additional solutions to assist with compliance with the National Firearms Act and ATF 41F. In addition to our normal legal services of preparing and revising NFA Gun Trusts, amendments, Form 1’s, 4’s and 5’s and related ATF documents, the Kim Firm has fingerprint and photo ID services available in-house for our clients. For clients filing Form 1’s to manufacture NFA firearms, ATF compliant engraving services are also available.
Whether you have an existing NFA Gun Trust or are considering a NFA Gun Trust, please contact us to discuss your options prior to purchasing or transferring a new NFA firearm.
NFA Gun Trust FAQ
What is a NFA Gun Trust and how can a qualified attorney assist me?
The Kim Firm, LLC prepares Georgia NFA Gun Trusts and the assists in the formation of Georgia based corporate entities (Corporations and LLC’s) for ownership of firearms and firearm accessories that are governed by the National Firearm Act and related federal and state laws. The National Firearms Act regulates the registration and ownership of the following items:
- Machine Guns,
- Short Barreled Rifles (“SBR’s”),
- Short Barreled Shotguns (“SBS’s”),
- Suppressors (commonly referred to as “Silencers”),
- Destructive Devices and Any Other Weapons (“AOW’s”).
This highly regulated class of firearms and firearm accessories are commonly referred to as “NFA firearms”, “Class 3 items”, “NFA items”, or “Title II items”.
For specific definitions of NFA firearms please click here.
Georgia residents can lawfully own NFA firearms and accessories subject to federal and state law. Prior to ownership of NFA items, the individual or entity must follow the necessary procedures, apply for registration of ownership of the NFA item, obtain approval for the transfer from one registered owner to the new registered owner from the Bureau of Alcohol, Tobacco, Firearms and Explosives (“BATFE”), and pay the registration fee for the tax stamp. This is generally $200 or $5 depending on the classification of the NFA item.
Registration of ownership of a NFA item can be done in one of the three following ways:
- NFA item registered to an individual; or
- NFA item registered to a business entity such as a Corporation or LLC; or
- NFA item registered to a Georgia NFA Gun Trust.
Each method of registration of ownership of an NFA item has distinct advantages and disadvantages that should be carefully considered before purchasing a NFA item. Choosing the proper registration of ownership method best suited to your individual requirements will:
Save costly time and/or money associated with the NFA registration of ownership process (fingerprints, individual photographs, background check and meeting with the Chief Law Enforcement Officer (“CLEO”) of your jurisdiction for a signature) via formation of a Georgia NFA Gun Trust or a Corporation/ LLC with the necessary NFA compliance provisions;
Reduce the potential criminal liability and violations of the National Firearms Act and related federal and state laws and regulations;
Shield you and your family from criminal prosecution due to inadvertent use and possession of restricted NFA items;
- Protect against confiscation of your firearms and other personal assets;
- Protect against civil fines up to $250,000.00;
- Allow multiple individuals to legally possess and utilize NFA items;
- Avoid costs and time delays of probate in the event of the death of the registered individual owner;
- Safeguard your assets and allow distribution to your beneficiaries; and
- Privacy of ownership of NFA items.
Each violation of the National Firearms Act is subject to criminal prosecution including the forfeiture of all firearms and any vessel, vehicle or aircraft used to transport or possess NFA firearms, up to ten (10) years in prison and civil fines up to $250,000.00. Extreme diligence should be placed in,
a) determining which method of NFA item ownership is chosen for your specific situation, and
b) drafting the Georgia NFA Gun Trust and creation of Georgia based NFA compliant Corporations and LLC’s with the necessary NFA provisions.
Based on an initial client consultation, The Kim Firm LLC will provide options on which method of NFA firearm registration of ownership will work best for your situation. Then the Kim Firm, LLC will prepare a Georgia NFA Gun Trust or create a NFA compliant Corporation or LLC and all necessary supporting documentation which will make your ownership, possession, and utilization of your NFA items compliant with Federal and Georgia laws and regulations.
If you already have an existing NFA Gun Trust or are a shareholder or member of a Corporation, or LLC which already possesses NFA items, the Kim Firm, LLC can be engaged to perform a compliance review of your NFA Gun Trust or Corporate or LLC’s creation and governing documents. A compliance review of your existing NFA Gun Trust or your existing Corporation or LLC documents prior to your submission of your registration documents (commonly referred to as a “Form 1” or “Form 4”) to the BATFE can save you costly amounts of time, expense and possible prosecution due to the improper creation of a NFA Gun Trust or improper creation/ operation of a Corporation and/ or LLC.
There have been numerous instances where the BATFE has made the determination that a NFA Gun Trust was improperly created, subsequent to a transfer of a NFA item. These improperly prepared NFA Gun Trusts were held to be invalid and the possession of the NFA item deemed a violation of the National Firearms Act subjecting the owner to substantial criminal and civil penalties (see above for the list of penalties).
A properly prepared Georgia NFA Gun Trust or corporate governance documents (Bylaws for corporations and Operating Agreements for LLC’s) will provide you, your family, shareholders, members and/ or employees guidance on how to acquire, possess, utilize and sell NFA items.
For non-compliant Georgia NFA Gun Trusts or corporate documents, the Kim Firm, LLC will prepare the necessary amendments to make your NFA Gun Trust, Corporation, or LLC compliant with Federal and Georgia laws and regulations, thereby giving you peace of mind in NFA firearm and firearm accessory ownership.
I have read the BATFE approval process takes time, how long does it really take?
As of December 31, 2013, the BATFE approval process averages 9 months for Form 1 (Application to Make and Register a Firearm) and Form 4 (Application for Tax Paid Transfer and Registration) processing and approval. However with development of the BATFE eFile system, the approval process is now between 3-6 months. Tradionally mailed Forms and NFA Trusts will still take 9 months to process. Please inquire with our office about BATFE eFile of your BATFE Forms and/or NFA Trust.
What if I was previously denied?
We have clients who were previously denied ownership of NFA items by the BATFE, but are not lawfully disqualified to possess NFA items. This can be due to improperly drafted NFA Trusts by a non-attorney, erroreous records, or other paperwork issues. If you feel you were improperly denied by the BATFE, please contact our office right away.
Why should I hire The Kim Firm, LLC for my NFA Gun Trust?
Some intenet services and non-attorneys use a “one-size-fits-all” trust form with little to no interaction with a licensed attorney. The attorneys at The Kim Firm, LLC will call and consult with every client prior to initiating our proprietary NFA Questionnaire. The attorney will consult with the client, answer their questions, and determine the necessary provisions prior to drafting each trust. Upon draft completion of the NFA Questionnaire, the attorney will meet face to face with the client to explain and answer any questions regarding their personalized Estate Plan, discuss the NFA provisions and protections, and explain post execution trust administration. The Kim Firm, LLC also serves as a resource for follow up questions after the NFA Gun Trust is completed.
What is My Next Step?