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Discussion or advice on how to create an Illegal NFA item will result in an immediate ban. No advice given within should replace user due diligence. Always consult a lawyer / professional.



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 41F and trusts question 
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I have a question about allowing others to use NFA items owned by a trust. ATF says:

Quote:
In the case of an unlicensed entity, including any trust, partnership, association, company (including any Limited Liability Company (LLC)), or corporation, any individual who possesses, directly or indirectly, the power or authority to direct the management and polices of the trust or entity to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on behalf of, the trust or legal entity.

In the case of a TRUST, those 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."


I've seen some people talk about assigning temporary trustees with narrowly defined trust powers to use NFA items for brief and defined periods of time, however this sounds risky. You could add a temporary trustee and explicitly deny any authority to manage the trust as outlined in the first ATF paragraph, but the second ATF sentence significantly expands the first for trusts only.

If I'm at the range with a friend and I amend my trust on the fly to allow a friend to handle an NFA item for the next 15 minutes, then I've technically created an instrument of the trust which grants that other person authority to possess and transfer the NFA item on behalf of the trust. The NFA defines "transfer" quite broadly and makes no exception that a transfer is not a transfer if the NFA item's owner (trustee) remains in proximity to whoever is physically handling the item. By proxy, as defined in the second ATF sentence, the person handling the item now meets the criteria of a "responsible person." The person would have to be disqualified from either the first or second part of the second sentence when delimited at the first "and." To avoid being a "responsible person," the person would have to either be not capable or not have the power to execute the defined actions.

To be "not capable," the person would have to have been found legally incompetent or not of sound mind. So you could lend your NFA item to a mentally ill or otherwise incapacitated person, though I assume other NFA provisions explicitly prohibit that. The other option is preventing the other person from having the power to execute the ATF's defined actions. I could think of two ways to do that; either maintain some form of physical contact with the person or NFA item while it is being operated by the other person, or literally attach a leash to the NFA item and hold onto the leash's handle. In either case the person would not have full power to possess or transfer the item, but the ATF verbiage does not explicitly specify if the person needs full or only partial power to execute those actions to qualify under its criteria.

I realize attaching a leash sounds ridiculous, but it is the logical conclusion of a strict interpretation of the rule. As an aside, until recently, California had a law prohibiting many rifles from having a magazine which could be detached without a tool. People got around that by designing magazine release buttons inside a small hole which could be actuated by inserting something with a small point, like the tip of the pen or a 5.56 cartridge. Consequently many people just put a bullet on their keychain. These magazine releases became known as "bullet buttons," and were the bane of anti-gun groups for years when they realized gun owners had effectively made a legally compliant mockery of their attempts to ban scary looking guns.

I haven't looked into LLCs much, but of note is that the ATF verbiage in that second paragraph explicitly applies to trusts, so unless other sections in the NFA make similar statements for LLCs, I guess an LLC may be a better, if more complex, option if you plan to ever allow anyone else to handle your NFA items?

What are others' experiences with this specific scenario of permitting NFA item use by non-trustees? Could you please post your trust's verbiage if it attempts to account for this activity?


Thu Apr 13, 2017 5:46 pm
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I stopped reading at the first paragraph. I think you are over thinking it.

If you want to go shooting with a buddy and he's a lane or two over at the range you don't need to put him on your trust.

Im not a lawyer. Didn't play one on TV but I DID stay at a Holiday Inn once.


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Thu Apr 13, 2017 6:54 pm
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As long as you are standing next to them, I don't believe they need to be on your trust. If they are on the trust, they can use it without you being around.

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Thu Apr 13, 2017 7:23 pm
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BlDtyLry wrote:
As long as you are standing next to them, I don't believe they need to be on your trust. If they are on the trust, they can use it without you being around.


That is the generally accepted rule of thumb from my understanding. I am on the conservative side at this point with any NFA item. Caution should be considered. IMHO So therefore I am not writing any ones name on my trust and lending a damn thing out, then something happens, then it's on me. If you want to come out and shoot with me then OK. Other than that, you can go get your own.

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Fri Apr 14, 2017 8:31 pm
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