NFALawyers Initial Review of 41P

[nitrousfedlx]

I'm pretty sure all the new atf agents r gonna do is back up the presidents EO. I don't see how this really helps in the fight against gun crime. Maybe I'm just not seeing the big picture. However when the president says " trust and other legal entities still need a background check", when there's already a 4473 in place which is exactly that, shows me how clueless he really is.

 

[LARGO9]

I won't hold my breath but I don't think Ryan is go to go for this, he going to shut it down, that way the POS can say he tried

 

[nitrousfedlx]

I won't hold my breath but I don't think Ryan is go to go for this, he going to shut it down, that way the POS can say he tried

I hope he can, does he have enough support u think to get it accomplished?

 

[Usmc6174]

Just to answer the question that everyone has asked about how to provide notice to your local CLEO, here is how the final ruling of the ATF on this issue addresses the situation:

Notification of chief law enforcement officer. Prior to the submission of the application to the Director, all applicants and responsible persons shall forward a completed copy of Form [1 or 4] or a completed copy of Form 5320.23, respectively, to the chief law enforcement officer of the locality in which the applicant or responsible person is located. The chief law enforcement officer is the local chief of police, county sheriff, head of the State police, or State or local district attorney or prosecutor. If the applicant is not a licensed manufacturer, importer, or dealer qualified under this part and is a partnership, company, association, or corporation, for purposes of this section, it is considered located at its principal office or principal place of business; if a trust, for purposes of this section, it is considered located at the primary location at which the firearm will be maintained.

I would recommend that these notifications be sent by certified mail.


If you need a firearms trust please take a look at: www.georgianfa.com

We were the first to provide online attorney backed trusts in Georgia and here on the ODT.

This guy is awesome, literally had my trust finished 45 mins after I filled out the info form and paid.......at 11pm on a sat ....this dude works round the clock for his customers!!!

 

[heavyd]

Has anyone noticed that damn near every procedure/law that they put forth looking to help with "sensible" gun legislation only does it from restricting or making it harder for law abiding citizens from legally exercising their constitutional rights? They consistently and ONLY attack this problem from a singular angle.

Sigh, I know. It's a damn shame.

 

[N Cochran]

There has been a lot of questions regarding what a “responsible person” means when it is used in Regulation ATF 41F (AG Order No. 3608-2016). The focus of this language is to see whether or not a person listed under a trust is subject to the requirements of being fingerprinted and having a background check conducted when a Georgia NFA firearms trust is submitted for the approval of a NFA regulated item transfer under the NFA (National Firearms Act). Unfortunately I believe there has been some knee jerk advice being issued from many sources that some might perceive to be reliable in an attempt to be the first to make such a statement. I don't see the "gotcha" that some are pointing too. I have been asked by several people, and now feel compelled to do so out of public interest, to share the following thoughts on the issue after having taken time to carefully review the language of the new regulation in conjunction with its interaction with Georgia law.


The language of ATF 41F/AG Order No. 3608-2016 in pertinent part reads as follows:


“…DOJ has also clarified that the term “responsible person” for a trust or legal entity includes those person who have the power and authority to direct the management and policies of the trust or legal entity to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on behalf of, the trust or entity. In the case of a trust, those 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 no behalf of the trust.”


It is necessary for particular attention to be given to the term “capability” in the line “…include any person who has the capability to exercise such power…” Without the presence of this term the arguments being made by those who wish to claim that the necessity of fingerprinting and a background check is limited to only being a burden born by a primary or controlling trustee would likely be accurate. However, this term provides the legal language needed to spread this burden to the other trustees identified in the trust. If any of the subordinate trustees, or co-trustees, have the capability (i.e. the potential or possibility) of becoming the primary or controlling trustee then they are also subject to the requirements of fingerprinting and background checks. Therefore, all trustees listed in the trust having the capability to become the primary or controlling trustee (whether through death, resignation, removal, etc… of the primary/controlling trustee) are subject to fingerprinting and background checks and are not exempt.


Additionally, O.C.G.A. § 53-12-261 grants statutory trustee powers to all trustees of Georgia express trusts, whether incorporated or cited to in the document specifically or not. These powers include the power to (1) sell, (2) invest, (3) operate a business, (4) form a business, (5) continue farming operations, (6) manage real property, (7) lease personal property, (8) pay expenses, (9) receive additional property, (10) deal with other fiduciaries, (11) borrow money, (12) make loans, (13) vote shares, (14) hold securities in the name of a nominee, (15) exercise options, (16) carry out mergers, dissolutions, etc., (17) adjust interest rate, (18) continue an obligation, (19) foreclose, (20) insure, (21) collect, (22) compromise, (23) employ persons to assist in trust administration, (24) deal with principal of several trusts, (25) set up reserves, (26) distribute cash or in kind, (27) distribute to minor or incapacitated beneficiaries, (28) make contracts, and (29) serve without filing inventory or reports. Clearly, these powers granted statutorily to any trustee of an express Georgia trust place such a trustee in the position of qualifying under the term “responsible person” and therefore being subject to a background check and fingerprinting.


Finally, it is proper here to make a practical point other than the legal points that have been presented already. The choice of how these regulations are enforced will be the choice of a large government regulatory agency. Whether or not you think they have the ability to require secondary trustees to submit to background checks and fingerprinting is irrelevant if they say they require them, which I am guessing, based upon my analysis, that they will. Therefore, until such time as this regulation is challenged and declared unconstitutional (which I do hope happens quickly since it is an offense to our system of law) we will all be subject to the government regulatory agencies interpretation.


By all accounts we are looking at a window of 180 days before the enforcement of this new regulation. Practically, if you wish to submit requests for transfers under trust documents without subjecting your trustees to fingerprinting and background check I would suggest doing so before that deadline.

 

[Usmc6174]

There has been a lot of questions regarding what a “responsible person” means when it is used in Regulation ATF 41F (AG Order No. 3608-2016). The focus of this language is to see whether or not a person listed under a trust is subject to the requirements of being fingerprinted and having a background check conducted when a Georgia NFA firearms trust is submitted for the approval of a NFA regulated item transfer under the NFA (National Firearms Act). Unfortunately I believe there has been some inexperienced knee jerk advice being issued from many sources that some might perceive to be reliable in an attempt to be the first to make such a statement. I don't see the "gotcha" that some are pointing too. I have been asked by several people, and now feel compelled to do so out of public interest, to share the following thoughts on the issue after having taken time to carefully review the language of the new regulation in conjunction with its interaction with Georgia law.


The language of ATF 41F/AG Order No. 3608-2016 in pertinent part reads as follows:


“…DOJ has also clarified that the term “responsible person” for a trust or legal entity includes those person who have the power and authority to direct the management and policies of the trust or legal entity to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on behalf of, the trust or entity. In the case of a trust, those 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 no behalf of the trust.”


It is necessary for particular attention to be given to the term “capability” in the line “…include any person who has the capability to exercise such power…” Without the presence of this term the arguments being made by those who wish to claim that the necessity of fingerprinting and a background check is limited to only being a burden born by a primary or controlling trustee would likely be accurate. However, this term provides the legal language needed to spread this burden to the other trustees identified in the trust. If any of the subordinate trustees, or co-trustees, have the capability (i.e. the potential or possibility) of becoming the primary or controlling trustee then they are also subject to the requirements of fingerprinting and background checks. Therefore, all trustees listed in the trust having the capability to become the primary or controlling trustee (whether through death, resignation, removal, etc… of the primary/controlling trustee) are subject to fingerprinting and background checks and are not exempt.


Additionally, O.C.G.A. § 53-12-261 grants statutory trustee powers to all trustees of Georgia express trusts, whether incorporated or cited to in the document specifically or not. These powers include the power to (1) sell, (2) invest, (3) operate a business, (4) form a business, (5) continue farming operations, (6) manage real property, (7) lease personal property, (8) pay expenses, (9) receive additional property, (10) deal with other fiduciaries, (11) borrow money, (12) make loans, (13) vote shares, (14) hold securities in the name of a nominee, (15) exercise options, (16) carry out mergers, dissolutions, etc., (17) adjust interest rate, (18) continue an obligation, (19) foreclose, (20) insure, (21) collect, (22) compromise, (23) employ persons to assist in trust administration, (24) deal with principal of several trusts, (25) set up reserves, (26) distribute cash or in kind, (27) distribute to minor or incapacitated beneficiaries, (28) make contracts, and (29) serve without filing inventory or reports. Clearly, these powers granted statutorily to any trustee of an express Georgia trust place such a trustee in the position of qualifying under the term “responsible person” and therefore being subject to a background check and fingerprinting.


Finally, it is proper here to make a practical point other than the legal points that have been presented already. The choice of how these regulations are enforced will be the choice of a large government regulatory agency. Whether or not you think they have the ability to require secondary trustees to submit to background checks and fingerprinting is irrelevant if they say they require them, which I am guessing, based upon my analysis, that they will. Therefore, until such time as this regulation is challenged and declared unconstitutional (which I do hope happens quickly since it is an offense to our system of law) we will all be subject to the government regulatory agencies interpretation.


By all accounts we are looking at a window of 180 days before the enforcement of this new regulation. Practically, if you wish to submit requests for transfers under trust documents without subjecting your trustees to fingerprinting and background check I would suggest doing so before that deadline.

Nate what will happen to guys that already have nfa items and just want to add a some one to their trust down the road?

 

[N Cochran]

Nate what will happen to guys that already have nfa items and just want to add a some one to their trust down the road?

That is a good question and one I am currently researching for GeorgiaNFA.com clients.

 

[JoKeR50]

That is a good question and one I am currently researching for GeorgiaNFA.com clients.

i.e. become a client and I will tell you once I know. Really can't fault that; I just love lawyer speak.

They have been working on this for years, working out all the angles to take your rights away from you. I wonder if it is bullet proof, so to speak, at this point. Additionally, I don't believe the current administration cares because, as some others have stated, it appears that the administration has something on a Justice and the Supreme Court is in their back pocket... Now where is that foil hat I have....

 

[DerekB711]

thanks dean