How Can I Legally Acquire NFA Firearms?
Basically, there are two ways that an individual or a legal entity, such as a trust, corporation, limited liability company, or a partnership, may legally acquire NFA firearms, if the individual or entity is not prohibited by Federal, State, or local law from receiving or possessing firearms:
(1) by transfer after approval by ATF of a registered NFA firearm from its lawful owner residing in the same State as the transferee; or (2) by obtaining prior approval from ATF to make NFA firearms.
27 C.F.R. §§ 479.62–66 (relating to applications to make firearms), 479.84–86 (relating to applications to transfer NFA firearms); see also ATF National Firearms Act (NFA) – Firearms FAQs.
What is an NFA Gun Trust?
An NFA gun trust is a legal structure that allows Title II weapons, such as machine guns, short-barreled rifles and shotguns, and sound suppressors (also known as mufflers or silencers) to be owned and enjoyed by ordinary law-abiding citizens. Title II weapons, which are commonly referred to as “NFA firearms,” may be titled in the name of a trust, rather than in the name of an individual.
Can More Than One Person Legally Possess NFA Firearms?
NFA firearms must be titled in the name of an individual or entity, much like other real property (land) and some types of personal property, such as cars, trucks, boats, and airplanes. If an NFA firearm is titled in the name of an individual, only that specific individual may possess it. One of the chief advantages of titling NFA firearms in the name of a trust, rather than in the name of an individual, is that more than one person may legally possess and use the trust property. Any person at least 18 years of age who can legally possess NFA firearms may be listed as a trustee of the NFA gun trust and, thereby, legally possess the trust property, which is usually the NFA firearms assigned to the trust.
For a married couple, suppose the husband owns a suppressor, which is legally registered with the ATF in his own name. The husband goes to work and leaves his suppressor at home. If the wife stays at home that day and could have access to the suppressor, she is committing a federal felony offense that carries a prison sentence of up to 10 years and/or a fine of up to $250,000. 26 U.S.C. §§ 5861, 5871; 18 U.S.C. § 3571(b). Further, the suppressor is subject to seizure and forfeiture. 26 U.S.C. § 5872. If convicted, the wife loses her right to own or possess any kind of firearms in the future. In addition, if the husband instead left the suppressor in the wife’s vehicle, the vehicle is subject to seizure and forfeiture. If the husband had simply registered the suppressor in the name of an NFA gun trust and listed both himself and his wife as trustees of the trust, this situation would have been prevented. Additionally, the couple could list other individuals, such as friends and family who are at least 18 years of age and who may legally possess firearms as trustees of the trust, if the individuals agreed to be listed as trustees.
Do I Need a NFA Gun Trust if I am Single?
Even if a person is single, it still makes sense to title NFA firearms in the name of a trust because of the built-in flexibility of being able to amend the trust throughout the person’s lifetime to add or remove additional trustees and to identify beneficiaries as the person’s life and roles evolve (i.e., husband, father, grandfather, etc.) If the person titles NFA firearms in his own name and then decides later to title the NFA firearms in the name of a trust, the person will end up paying the $200 transfer tax (or whatever the transfer tax amount is at that time) for each NFA firearm to be transferred to the trust. This short-term thinking (titling NFA firearms in the name of an individual) could end up costing the person a large sum of money down the road.
Do I Need Permission from a State or Local Certifying Official to Acquire or to Make NFA Firearms?
When an individual applies to the ATF to have an NFA firearm titled in his own name, the individual is required to provide the ATF with fingerprints, passport photographs, and a certificate on the ATF’s form from the local chief of police, sheriff of the county, head of the State police, State or local district attorney or prosecutor, or other person approved by the ATF stating that the certifying official is satisfied that the fingerprints and photograph accompanying the application are those of the applicant and that no information indicating that possession of the NFA firearm by the applicant would violate State or local law or that the applicant will use the firearm for other than lawful purposes. 27 C.F.R. §§ 479.63, 479.85. For various reasons, many Chief Law Enforcement Officers (CLEOs) refuse to complete the certificate required by the ATF, thereby obstructing the individual’s attempt to own and enjoy NFA firearms. However, when the applicant is an NFA gun trust, rather than an individual, no fingerprints, photographs, or certificate from any State or local certifying official is required. See id.
Do I Need to Visit Your Office to Get an NFA Gun Trust?
No. I prepare NFA gun trust for clients who live all over Colorado. In most cases, I can answer all of my clients’ questions about NFA gun trusts and get all of the information that I need to prepare their NFA gun trusts over the telephone and by email. All of the NFA gun trust documents are emailed to my clients, who then execute the documents using a notary public and witnesses where they live.
Who Needs to Sign the NFA Gun Trust Documents?
Since an NFA gun trust is a trust agreement, all of the Settlors and Trustees must sign the NFA gun trust agreement in the presence of two witnesses and a notary public.
Do All of the Settlors and Trustees Need to Sign the NFA Gun Trust Documents at the Same Time?
No. It can be a logistical problem to get all of the Settlors and Trustees into the same room, especially if one or more of the Settlors or Trustees are active duty military personnel who are deployed overseas.
Do I Need to Register or Record an NFA Gun Trust with the State of Colorado?
No. Since the NFA gun trust is a revocable trust, it does not need to be registered or recorded with the State of Colorado or any county or local government entity. An NFA gun trust is not a public document, rather it is private, much like a will. However, when the trust files an application with the ATF to transfer or make an NFA firearm, a complete copy of the NFA gun trust and any amendments are filed with the application.
When I Mail My Application to the ATF, Do I Need to Send a Complete Copy of the NFA Gun Trust?
Yes, if an individual wants to title a Title II weapon, or NFA firearm, in the name of an NFA gun trust, the ATF needs a complete copy of the NFA gun trust and all amendments to the NFA gun trust to be mailed along with the ATF application.
When I Mail My Application to the ATF, Do I Need to Include a “Schedule A?”
It depends. If an NFA gun trust does not specifically state that it includes schedules (which is just another word for attachments, or exhibits, to the trust), such as a “Schedule A” to identify all of the trust property or a Schedule B to identify the beneficiaries, then the NFA gun trust is complete without a “Schedule A.” On the other hand, if the NFA gun trust specifically states that it includes schedules, then the schedules necessarily form a part of the NFA gun trust. In other words, without the schedules specifically identified in the trust document, it is not a complete copy of the NFA gun trust. If you understand this distinction, then you should understand why this is a misleading question. The correct question is whether you need to send a complete copy of the NFA gun trust to the ATF, and the answer to the question is ‘”yes.” See also http://www.mycoloradoguntrust.com/schedule-a-question.html.
Does Your NFA Gun Trust Include a Schedule A?
No, and for very good reasons. Some attorneys who prepare NFA gun trusts include schedules as part of their NFA gun trust, such as a Schedule A to identify all of the trust property. Such a practice has two primary disadvantages for their unfortunate clients. First, each time the client transfers property in or out of the NFA gun trust, the schedule must be amended. The better practice is transfer property in or out of the NFA gun trust using a separate assignment form, which is not part of the NFA gun trust. Second, the ATF needs a complete copy of the NFA gun trust each time you mail in a new application. Besides NFA firearms, other personal property such as non-NFA firearms (Title I weapons) and other collectibles may be assigned to the NFA gun trust. If the NFA gun trust includes a schedule that identifies all trust property, the customer unnecessarily provides an organized, detailed inventory of each and every item assigned to the NFA gun trust, such as NFA firearms, non-NFA firearms, or other collectibles to the ATF. Why would this be a good idea? Finally, more and more frequently, Class III dealers mail the package of documents that form a complete application to the ATF on behalf of their customers. To do so, each time the customer buys a new NFA firearm, the Class III dealer needs a complete copy of the customer’s NFA gun trust. If the NFA gun trust includes a schedule that identifies all trust property, the customer turns over, or broadcasts, a detailed inventory of each and every item assigned to the trust, such as NFA firearms, non-NFA firearms, or other collectibles to the Class III dealer, which, frankly, the Class III dealer has no reason to know about. Also, once you turn over your NFA gun trust to the Class III dealer, you do not know whether additional copies will be made or stored online, who among the Class III dealers present or future employees have or will have access to the information, or to whom this information is or will be disclosed. Don’t get me wrong, I trust my recommended Class III dealers, but this is still a major security breach. On the other hand, if an NFA gun trust does not include include a schedule that identifies all trust property, the only trust property that the Class III dealer, the dealer’s employees, and any third parties to whom this information might be disclosed will know is owned by the customer is the specific NFA firearm(s) bought from the Class III dealer. It is a simple matter of privacy and security. 10/22/2013 Update: One of my favorite Class III dealers sells its own in-house NFA gun trust form that includes a “Schedule 1” to identify all of the trust property. Their poorly written NFA gun trust, which they market as a “great example of a do-it-yourself option,” also includes several other provisions that I do not recommend. For example, one such provision provides that the beneficiaries of the NFA gun trust (usually the settlors’ children) can unanimously agree to terminate the NFA gun trust at any time and force all of the trust property (usually the parents’ gun collection) to be sold or transferred to the beneficiaries, even while the settlors (usually the parents) are very much alive and well, and regardless of whether the beneficiaries (usually the settlors’ children) are, in either the settlors’ or the trustees’ opinion, mature enough or responsible enough to lawfully use and possess the trust property (usually the parents’ gun collection). Another provision requires the trustees (usually includes the parents) to allow the beneficiaries (usually the settlors’ children) full use of all trust property (usually the parents’ gun collection), even while the settlors (usually the parents) are very much alive and well, and regardless of whether the beneficiaries (usually the settlors’ children) are, in either the settlors’ or the trustees’ opinion, mature enough or responsible enough to lawfully use and possess the trust property (usually the parents’ gun collection).
Can I Prepare My Own Colorado NFA Gun Trust?
Who knows? Would you like to be the next poster child for the proposition that one should not rely on prepaid legal forms with boilerplate language for important legal matters, especially where NFA firearms are concerned?
Has the ATF Ever Challenged the Validity of an NFA Gun Trust Prepared by You?
No.
Can You Review and/or Redraft a Colorado NFA Gun Trust Prepared By Someone Else?
Yes. I have received several inquiries from individuals who were very uneasy about the quality, or lack thereof, of NFA gun trusts prepared by others after reviewing the information on my website. In at least two cases, I have been requested to redraft “gun trusts” prepared by two different so-called “gun trust” attorneys in Dallas, Texas. I have also redrafted “gun trusts” sold as forms by non-attorneys, such as Class III dealers.
Does an NFA Gun Trust Eliminate the ATF’s $200 Tax?
No, each time an NFA gun trust applies to transfer or to make an NFA firearm, it must pay the $200 tax for each NFA firearm to be transferred or manufactured.
Does an NFA Gun Trust Need a Taxpayer Identification Number?
No, as long as one of the Settlors of the NFA Gun Trust is alive, no Taxpayer Identification Number is required.
Is the NFA Gun Trust Required to File Any Annual Reports or Pay Any Franchise Taxes?
No, NFA gun trusts are not required to file any annual reports or to pay any franchise taxes in Colorado.
When Does an NFA Gun Trust Become Irrevocable?
Upon the death of the last of the Settlors to die.
What Happens to the NFA Firearms Assigned to the NFA Gun Trust When the Settlors Die?
The trust property assigned to the trust passes to the beneficiaries of the trust without being subjected to the probate process. Until the trust property is distributed to the beneficiaries, the trustees of the NFA gun trust continue to hold and possess the trust property in trust for the beneficiaries.
How Many NFA Firearms Can Be Assigned to the NFA Gun Trust?
There is no limit to the number of NFA firearms that may be assigned to your NFA gun trust.
Can Non-NFA Firearms (Title I Firearms) Be Assigned to the NFA Gun Trust?
Yes.
Can I Add Someone as a Trustee on an NFA Gun Trust Who Live in a State Where NFA Firearms, Such a Silencers, Short Barreled Rifles (SBRs), Short Barreled Shotguns (SBSs), and Machine Guns, are Illegal?
Yes. However, the trustee will not be able to use and possess the NFA items there. The trustee will only be able to use and possess the NFA firearms in a state where NFA firearms are legal.
Do I Need to Carry Proof of Registration for my NFA Firearm in Colorado?
Yes. My NFA gun trust clients frequently ask about the documents that they need to carry when they are at the shooting range or at the ranch hunting with an NFA firearm, such as a silencer or a short-barreled rifle. I advise my clients that they should always have a copy of the ATF tax stamp for each NFA firearm in their possession, a copy of their NFA gun trust, including all amendments, if any, and their driver’s license.
Why Do You Charge So Little for Such a Comprehensive and Thorough Colorado NFA Gun Trust?
I am a long-time firearms owner, competitive shooter, collector, instructor, and licensed attorney in both Texas and Colorado. I thoroughly enjoy meeting like-minded firearms owners, shooters, and collectors and having the opportunity to provide them and their families with high-quality Texas NFA gun trusts at reasonable prices so that they may continue to exercise and enjoy their Second Amendment rights and pass this unique American heritage to future generations.
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