In Jan. 8, 2016 episode of Inside Story with Ray Suarez, Arsenal Attorneys' Managing Attorney Matthew Bergstrom addressed executive action by President Obama for gun control. Mr. Bergstrom said "If President Obama knew he had a stronger case he wouldn't use executive action." Mr. Bergstrom continued that President Obama "conceded that much of his recommendations would not have stopped these high profile tragedies that gave rise to this debate in the first place."
Arsenal Attorneys' is a law firm serving clients across America in a variety of legal matters. We are particularly renowned for our Arsenal Gun Trust solution. We offer business services, estate planning, criminal defense, civil litigation, and more.
We’ve made extensive updates to our Arsenal Gun Trust™ design to protect clients and their successors from the executive action announced by President Obama last week concerning trusts and NFA firearms, such as silencers, short barrel rifles, and machine guns. We strongly encourage you to read our recent blogs about these developments. Also make sure you've signed up for our newsletter to receive important updates.
Previously we offered three different versions, but the executive actions announced last week led us to conclude all clients should use an Arsenal Gun Trust with an optimal design and updated guidance. The updated design of the Arsenal Gun Trust™ will be important for (1) new clients, (2) existing clients who already have an Arsenal Gun Trust, and (3) those who already have a trust obtained elsewhere.
The changes we made include the following:
And the fee? We’ve reduced our fee by $100-$400 compared to the most similar option we previously offered. Why? Because we want to help as many people as possible take advantage of the existing rules before they change in six or so months.
Remember, you can create a new trust to use before President Obama’s executive action takes effect, and we can redesign a trust you already obtained elsewhere so you can enjoy the Arsenal Gun Trust™ design and an attorney-client relationship with Arsenal Attorneys™.
Are you wondering what new requirements the Obama Administration has created for firearms in trusts regulated under the National Firearms Act ("NFA"), such as silencers, short barrel rifles, and machine guns?
Before bracing yourself for red tape, bear in mind that the new regulations will not come into effect until 180 days after they have been published in the Federal Register--and they haven't been published yet. Also, it's important to know these new requirements are not retroactive. So NFA firearms registered before the announcement of these new requirments will not be affected by these requirements, and NFA firearms registered by applications submitted before that 180 day deadline will not be subject to the new requirements.
What are the new requirements?
Based on the Final Order known as '41F' (originally proposed as '41P'), new applications for NFA firearms submitted to ATF after the new rules come into effect must include ATF Form 5320.23 for each so-called 'responsible person'. In an Arsenal Gun Trust, some but not necessarily all the people in a client's trust would be considered responsible persons.
ATF has released the draft version of ATF Form 5320.23 entitled "Responsible Person Questionnaire." It provides ATF information to be used in a background check to ensure the responsible person is not in fact a 'prohibited person' who may not possess NFA firearms.
Later, if a trust has registered an NFA firearm under the new rules, and an additional responsible person is added to the trust, that new responsible person would need to submit Form 5320.23. What's important to know that if your trust only contains firearms from before these new rules took effect, you may add new people to your trust without complying with the new requirements for responsible persons.
This new form does not require the signature of a Chief Law Enforcement Officer (CLEO).
What benefits will a trust offer under these new rules?
ATF has said “Certainly, there are legal reasons to create a corporation or a trust . . . The Department [of Justice] therefore believes creation of these trusts and legal entities will continue.” (27 CFR Part 479, Docket No. ATF 41F; AG Order No. 3608-2016, p. 228).
A trust enables you to authorize 'responsible persons' to have legal possession of your NFA firearms. Therefore you reduce the risk of committing a felony, because even just possible access to your NFA firearm outside your presence would be considered an illegal transfer. Such a violation of the NFA could lead to severe penalties, including up to $250,000 in fines, up to 10 years imprisonment, confiscation of all your firearms, and loss of your Second Amendment rights.
Additionally your Arsenal Gun Trust would provide an estate plan so your gun collection may be inherited lawfully and safely.
Please note, it is very important to ensure your trust will continue for as long as the state law governing your trust will allow. ATF will allow your successors to keep your existing trust and the NFA firearms it contains without the need to obtain new NFA tax stamps or comply with the new rules, but this is only possible if your trust may continue beyond your lifetime. Many trusts do not continue very long, and many states law restrict the duration of a trust. Arsenal Attorneys™ can review your trust, and we can amend your trust so it incorporates the Arsenal Gun Trust™ design. Because we are perhaps the only law firm to offer direct attorney-client relationships to clients requiring help with NFA firearms, we are able to help you determine the possibility another state's law if it permits a longer duration for your trust.
We estimate there are hundreds of thousands of people named as 'successor trustees' in all the gun trusts in existence. In typical gun trusts, successor trustees would not meet the definition of a 'responsible person' because they do not possess the powers of a trustee until they actually succeed the trustee. That succession would probably happen automatically if a trustee becomes incapacitated or dies. Therefore, a successor trustee would automatically become a 'responsible person' under 41F, and if they didn't know or weren't aware of the need to submit ATF Form 5320.23, they'd automatically be out of compliance with 41F. Similar situations could arise for beneficiaries or for people later appointed to a trust containing firearms subject to 41F. It's likely the design of most gun trusts would leave these people unprotected and unaware. On the other hand, perhaps 41F is not as far-reaching as initially feared.
We're still waiting for the final action on for 41F to be published in the Federal Register, and we will closely analyze whether it differs from the current current version posted on January 4. Interestingly, the new requirements for 'responsible person' only address applications for an NFA firearm. It does not explicitly say that a person added to a trust after a NFA tax stamp is issued would be required to submit ATF Form 5320.23 even if they meet the definition of a 'responsible person.' Could this be an oversight by ATF? Perhaps not. Their filing system and the National Firearm Registration and Transfer Record (NFRTR) are organized based on serial numbers of individual firearms--not by owner or trust. Thus if a trust already owns five NFA firearms, and two new people are added to the trust, then 10 separate ATF Form 5320.23's would need to be filed because each of the two new 'responsible persons' would need to file a single form for each of the five NFA firearms in that trust. We suspect that volume of red tape would be overwhelming for ATF systems, which would explain why 41F might deliberately apply only to the moment an NFA firearm application is not made. A valid trust coud contain just a single 'resonsible person' at the time of an NFA application, which would mean only one copy of ATF Form 5320.23 would need to be submitted for that application. Stay tuned for further analysis on this issue.
What should you do?
In consideration of the above, Arsenal Atttorneys™ is offering new and existing clients the following advice:
Contact Arsenal Attorneys™ today to create or update your trust. We are possibly the only law firm to serve so many clients nationwide in firearms law through direct attorney-client relationships without a middleman. This enables us to support clients who move to a new state, and we can advise clients about the possibility of using another state's law if advantageous. Want to receive news and information like this in the future? Sign up for our newsletter using the form at the bottom of our homepage. Learn more about us by visiting our News & Events page. To request our Arsenal Gun Trust™ services, visit this page.
Below is an early draft version of ATF Form 5320.23. Interestingly it still contains the CLEO certification, which was eliminated in the Final Order for 41F announced this week. We will post the final version of this form when it is published by ATF. While the CLEO signature will not be a requirement, photographs and fingerprints will be required. Also, providing a social security number will be optional.
The Obama Administration has announced plans to proceed with the proposal previously known as ‘41P’ and now called ‘41F’, which concerns firearms regulated by the National Firearms Act (‘NFA’), such as silencers and short barrel firearms. The Final Order for 41F released by ATF yesterday would complicate the registration of NFA firearms, but it has not yet been published in the Federal Register. If and when it is published, the effective date of the Final Order will be 180 days later. Until that time, you may use a trust to submit applications to transfer or make NFA firearms under current regulations. Applications submitted prior to the effective date will be approved under existing rules because the Final Order will not be retroactive.
Arsenal Attorneys™ is crafting new solutions to protect clients in light of the Final Order. It's particularly important to determine the maximum possible duration of a trust, and whether you could or should use another state's law for that reason.
It’s also important that you use a trust providing guidance and protections for you and others involved with your trust—whether they are involved presently or in the future. In light of this executive action by President Obama, Arsenal Attorneys™ has crafted new solutions concerning so-called ‘responsible persons’.
Our clients will be receiving information about these new solutions and other guidance regarding these recent developments. We’re also preparing information for new clients who need a trust or wish to revise a trust they obtained elsewhere. Many people are requesting special consultations to learn about 41F and to discuss trusts. We're making all these new services available for special discounted rates so we can make them available to as many people as possible.
Contact us to request more information, and let us know whether you’re interested in any of the following:
Finally, you may sign up for our newsletter at the bottom of our homepage. Please review our recent blog entries to learn more about the pending executive action.
Arsenal Attorneys™ is perhaps the only law firm to offer solutions for NFA firearms to clients across America through direct attorney-client relationships—and without a middleman. This helps us provide you a greater variety of options based on our practice of law in so many jurisdictions.
We look forward to hearing from you.
Disclaimer: The Disclaimer of this Website applies to all blog entries. This information is provided for informational purposes only and should not be used as legal advice. No attorney-client relationship is created by these communications. Always consult a lawyer to discuss your specific circumstances.
ATF has released its final order for executive action on registration of NFA firearms by trusts--to take effect 180 days after its publication in the Federal Register. It will require so-called 'responsible persons' in a trust to provide fingerprints, photographs, and a form along with applications by a trust to transfer or make an NFA firearm. The final order replaces the Chief Law Enforcement Officer ("CLEO") certification requirement with CLEO notification. Thus a CLEO will need to be notified of an NFA registration, but a CLEO's signature will no longer be required.
As of this writing, this final order had not yet been published in the Federal Register.
The full text of the final order can be found at this link.
Thus far, this final order has not yet been published in the Federal Register. Based on previous statements by ATF, any NFA application submitted to ATF within 180 days of the publication of the final order in the Federal Register will be accepted under the current rules. Therefore, one could create a trust now and submit such an application without the need for fingerprints, photographs, or either CLEO certification or notification.
Contact Arsenal Attorneys to start your Arsenal Gun Trust today.
UPDATE: AN UPDATE TO THIS BLOG CAN BE FOUND HERE: ATF RELEASES FINAL ORDER.
This evening the White House released this document entitled "FACT SHEET: New Executive Actions to Reduce Gun Violence and Make Our Communities Safer". It includes statements that ATF ‘is finalizing’ plans on ownership of NFA firearms by trusts. Presumably these plans would encompass the more than two-year-old proposal known as '41P.’
In its original form, 41P required various 'responsible persons' in a trust to provide fingerprints, photographs and a signature from a Chief Law Enforcement Officers. Essentially 41P would restrict Second Amendment rights, create red tape for local law enforcement, and increase regulation of firearms that do not raise law enforcement or public safety concerns. Indeed, the National Sheriffs' Association are one of the many opponents of 41P in its original form.
For now, the executive action on NFA firearms and trusts the White House 'is finalizing' remains a mystery. Some speculate that ‘is finalizing’ means 'not yet final' or 'uncertain'. Some of our sources believe a 41P-style executive action will not happen. They point to the fact BATFE has been finalizing 41P for more than two years. Other sources say ATF has actually been developing several alternatives to the original version of 41P some of which would greatly complicate or simplify the existing process.
For its part, the White House statement this evening focused on background checks for NFA firearms registered by trusts, but it did not explicitly provide any other details. Nevertheless the stated intentions of the Obama Administration should be taken seriously, and proactive people will want to act now before a final order for any executive action might come into effect.
Arsenal Attorneys has helped thousands of clients across America register NFA firearms using our unique 'Arsenal Gun Trust' design. Contact us today to learn how we can help you.
Arsenal Attorneys is committed to answering your questions about estate planning, firearms, business law, litigation, and criminal defense issues.
We'll gladly discuss your case with you at your convenience. Contact us today to schedule an appointment.