Background Checks needed for Trusts

After confirming with ATF and Virginia State Police FTC; a background check must be done on the person purchasing Title I and Title II (Class 3) firearms on behalf of a trust. ATF is not making this retroactive.

However, any individual, corporation, company, association, firm, partnership, society, or joint stock company is still exempt from the background check for Title II (Class 3) firearms.

What this means is silencers can no longer be shipped to trusts.

Below is a link to the ATF letter.

http://www.guntrustlawyer.com/ATF%2013-0574%20-4473%20Trus%20tResponse%20Letter.pdf

To sum up: "The law clearly says no background check required, so we interpret that to mean that a background check is required."

First, they add words to the statute, changing it from "approved" to "approved to the person receiving the firearm."

Then, they claim a trust is not a person. But 921(a)(1) defines a person to "INCLUDE" certain types of entities, it does not EXCLUDE trusts. The definition was intended to be broadly inclusive, but ATF uses it as exclusive language.

Typical ATF. "WHATEVA, I DO WHAT I WANT!"

There is definitely a conflict in the laws.

18 U.S.C. § 921(a)(1) says 'The term “person” and the term “whoever” include any individual, corporation, company, association, firm, partnership, society, or joint stock company.'

Whereas

TITLE 27 CFR CHAPTER II PART § 479.11 says 'Person. A partnership, company,association, trust, estate, or corporation,as well as a natural person'

27 CFR 478 is for the GCA, whereas section 479 is for the NFA, I believe.

So the definition that would apply to 18 USC 921 is the definition in 478, which does not include trusts.

However, as I said, the definition is intended to be INCLUSIVE -- as in, "here are SOME of the types of entities that are persons" -- it does not EXCLUDE any entity.

This is pointless by ATF. They are cracking down on people who use trusts to get NFA weapons simply because that is the entity people have chosen. If you can't use a trust, I would assume you can still use a "corporation, company, association, firm, partnership, society, or joint stock company."

So just set up a corporation to get your NFA weapon, and we're back to no background check? And then just set up a trust that controls the corporation. Done.

You speak the truth. I suspect Virginia will see a large increase in LLCs soon.

Reading comprehension fail at the ATF..imagine that. They just got a smack down in the Supreme Court (ruling should be out soon) due to "their interpretation" of the law as written. We just went through something similar here in VA regarding the Machine Gun Act and transfers involving trusts. They don't get to add words, nor do they get to "interpret" what the law plainly states in regards to "persons". 18 USC is LAW, 27 CFR is regulation. LAW trumps Regulation. The law declares trusts as "persons".

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(1) The term “person” and the term “whoever” include any individual, corporation, company, association, firm, partnership, society, or joint stock company.

association n. any group of people who have joined together for a particular purpose, ranging from social to business, and usually meant to be a continuing organization. It can be formal, with rules and/or by-laws, membership requirements and other trappings of an organization, or it can be a collection of people without structure. An association is not a legally-established corporation or a partnership. To make this distinction the term "unincorporated association" is often used, although technically redundant.

The act of a number of persons who unite or join together for some special purpose or business. The union of a company of persons for the transaction of designated affairs, or the attainment of some common object. An unincorporated society; a body of persons united and acting together without a charter, but upon the methods and forms used by incorporated bodies for the prosecution of some common enterprise. Allen v. Stevens, 33 App. Div. 485, 54 N. T. Supp. 23; Pratt v. Asylum, 20 App. Div. 352, 46 N. Y. Supp. 1035; State v. Steele, 37 Minn. 42S, 34 N. W. 903; Mills v. State, 23 Tex. 303; Laycock v. State, 136 Ind. 217, 36 N. E. 137.

Law Dictionary: What is ASSOCIATION? definition of ASSOCIATION (Black's Law Dictionary)

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(1) The term “person” and the term “whoever” include any individual, corporation, company, association, firm, partnership, society, or joint stock company.


association n. any group of people who have joined together for a particular purpose, ranging from social to business, and usually meant to be a continuing organization. It can be formal, with rules and/or by-laws, membership requirements and other trappings of an organization, or it can be a collection of people without structure. An association is not a legally-established corporation or a partnership. To make this distinction the term "unincorporated association" is often used, although technically redundant.

The act of a number of persons who unite or join together for some special purpose or business. The union of a company of persons for the transaction of designated affairs, or the attainment of some common object. An unincorporated society; a body of persons united and acting together without a charter, but upon the methods and forms used by incorporated bodies for the prosecution of some common enterprise. Allen v. Stevens, 33 App. Div. 485, 54 N. T. Supp. 23; Pratt v. Asylum, 20 App. Div. 352, 46 N. Y. Supp. 1035; State v. Steele, 37 Minn. 42S, 34 N. W. 903; Mills v. State, 23 Tex. 303; Laycock v. State, 136 Ind. 217, 36 N. E. 137.

Law Dictionary: What is ASSOCIATION? definition of ASSOCIATION (Black's Law Dictionary)

I agree, but we are stuck until ATF is proven wrong in court or via legislation.

You know something about Abramski that the rest of us don't?

I hope Mark is right regarding Abramski. It really sounds like ATF was on a witch hunt.

Here is a link to the oral arguments.

http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-1493_2135.pdf

I have been advised we cannot transfer silencers to trusts as there is not currently a way to perform the background checks in Virginia.

The Firearms Transaction Center is supposedly working with ATF to come up with a solution.

For the non-industry folks out there... Why does this prevent you from running a background check on the person picking up the item via Virginia's state police system?

Also, the back of the 4473 is pretty clear on NFA transfers...

Item 22:



I don't even know why the ND shop would even ask the question at all. Seems pretty clear to me.

Honestly, I don't see how this affects anyone but the shop in ND, at least until they change the 4473 and take off that box. It's an opinion letter, not an official ruling, at least as I see it.

Virginia doesn't recognize silencers as firearms therefore a background check cannot be run on the trust's representative picking up a silencer. We have to select pistol, revolver, rifle or shotgun on the VCheck and VA form SP65.

If we had direct access to NICS, this would not be a problem.

If Virginia's CHP could be used in lieu of a background check, this would not be a problem.

Block 22 on the 4473 applies to "any individual, corporation, company, association, firm, partnership, society, or joint stock company," not trusts. See 18 U.S.C. § 921(a)(1). ATF is taking this literally.

But if VA doesn't recognize Silencers as firearms, there would be no need to get a NICS check done, nor to fill out the state form at all as it's not a firearm of the listed types. (I know, it's not as simple as that)

Again, still no idea how an opinion letting in another state would be able to affect transfers in VA until it's an official ruling and the 4473 is changed (like when stripped receivers were moved to "other" status.)

"Other" brings up another question... They (stripped AR15 receivers) aren't pistols, rifles, shotguns, revolvers. Did VA change the SP65 and change the VCheck to reflect that change?

Good lord, I hate bureaucracies and their lack of logic!

This just got real interesting!

http://blog.princelaw.com/2014/05/14/did...uns-for-trusts/

So either the ATF reverses itself in writing, making headlines with yet another embarrassing episode of bureaucratic incompetence, or they've just lowered the price on transferrable M249's from half a million dollars to... what's the going rate on a new post sample? $10k?

What's another drop in the bucket anyway, they'll reverse their faulty assertion that a trust isn't a person. The current administration undoubtedly prefers skipping NICS for trust transfers over a self-imposed end run of 922(o).

After a lot more research, we are not going to perform background checks for silencers until we are told otherwise by ATF in writing either directly or as a general notice to all dealers.

Abramski ruling has been released.

http://www.supremecourt.gov/opinions/13pdf/12-1493_k5g1.pdf