This rule subjects almost all firearms with a stabilizing brace to the registration and taxation requirements of the National Firearms Act.

There is currently litigation over this rule, but that litigation will take time to sort out. For our clients who wish to comply with the registration process, we have put together this information to help you.

The rule was first posted on January 13 and ATF has attempted to clarify several issues, which include:

1)    Braces that are removed from firearms do not necessarily have to be destroyed or altered in a way that prevents them from being reattached.  This is because under United States v. Thompson/Center Arms Co.   if the part can be assembled into multiple lawful configurations, it is not unlawful to possess.  If you own a 16 inch AR pistol, it could be assembled into a lawful pistol.

2)    Imported pistols with stabilizing braces were not initially permitted because of violating 18 U.S.C. § 922(r). But ATF updated their FAQ page to state that while the assembly would violate the rule, they will permit those with imported pistols the same options as anyone else under the fule rule without further modification.

Section 922(r), in the relevant part, makes it unlawful to assemble from imported parts a semiautomatic rifle that is otherwise not importable. The implementing regulations of the GCA at 27 CFR 478.39 provides that a person may not assemble a semiautomatic rifle using more than 10 of the imported parts listed in the relevant paragraphs of the regulation. As discussed in section IV.B.8.e of the final rule, the criminal violation under section 922(r) is for the “assembly” of the semiautomatic rifle; therefore, no modification of such firearm would cure the 922(r) violation because the “assembly” has already occurred. Accordingly, a person with an imported pistol that was subsequently equipped with a “stabilizing brace” will have the same options as anyone else under the final rule. Should that person choose to register the firearm, no further modification of the firearm with domestic parts is required.

One issue that had caused much confusion is the language about proving the firearm was owned by a trust before the January 30th date.

The ATF eForm 1 FAQ states:

27. CAN I REGISTER MY SHORT-BARRELED RIFLE QUIPPED WITH A “STABILIZING BRACE” PURSUANT TO ATF FINAL RULE 2021R-08F TO MY TRUST?

Answer: In short, a trust may not register a firearm equipped with a “stabilizing brace” that is a short-barreled rifle pursuant to ATF Final Rule 2021R-08F unless the trust can establish through documentary evidence that the trust possessed the firearm prior to the date the final rule is published in the Federal Register.

Under the final rule, the Attorney General has authorized a tax forbearance that allows current possessors of firearms equipped with a “stabilizing brace” that meet the definition of “rifle” and have a barrel or barrels less than 16 inches to register the firearms tax-free. A current possessor is a person who possessed the firearm with an attached “stabilizing brace” prior to the date the final rule is published in the Federal Register.

Accordingly, any trust that seeks to register a firearm with an attached “stabilizing brace” that is a short-barreled rifle pursuant to Final Rule 2021R-08F must include with the eForm 1 application evidence that establishes the trust possessed the firearm prior to the date the final rule is published in the Federal Register. This evidence will generally include the signed, dated, and notarized terms of the trust or trust schedules that list or provide a description of the property held in trust. For trust applicants, ATF will perform a thorough review of the trust documents provided with the eForm 1 application to ensure the firearm sought to be registered to the trust was property possessed by the trust prior to the date the final rule is published in the Federal Register. Therefore, an eForm1 application to register a firearm equipped with a “stabilizing brace” to a trust will be disapproved if the applicant fails to demonstrate the trust possessed the firearm prior to the date the final rule is published Federal Register.

23. MY EFORM WAS DENIED AFTER THE 120-DAY TAX FORBEARANCE PERIOD, CAN I RESUBMIT THE APPLICATION TAX-FREE PURSUANT TO FINAL RULE 2021R-08F?

Answer: Yes, provided the application was not denied because of a failed background check. The option to register a firearm pursuant to Final Rule 2021R-08F will be disabled in the eForm system after the 120-day tax forbearance period. Any re submission will need to be done using a paper Form

1. Guidance will be provided in the original disapproval and instructions for submitting a paper application can be found on the Form 1, Application to Make and Register a Firearm.

Most people do not realize that many of the same issues regarding transfer upon death or incapacity exist for regular firearms and NFA firearms sold by Class 3 SOT dealers. This is why I would suggest putting all of your Guns in one of our Gun Trusts.

Recently, there has been much discussion regarding the banning of AR-15 style firearms.  If your firearms are in a trust, the trust can later be amended to be a multi-generational trust which can insulate the firearms from future transfers. Our multi generational Gun Trust provides asset protection at each generation and prevents transfers.  The beneficiaries do not receive the firearms by transfer upon your death but become the next managers of the trust.  The Professional Gun Trust remains the owner generation after generation.

I have good news for those of you who did not obtain Form 20’s in advance and are evacuating because of a named storm, in this case IRMA.

I just got off the phone with ATF who told me to prepare a Form 20 email it to NFAFAX@aft.gov Attn Chuck RE Hurricane IRMA and they will get it and process it ASAP and that while you may not get it back before you evacuate all that is required it to submit it before you evacuate. This only applies to those who are evacuating. for instructions on preparing a form 20 see https://www.GunTrustLawyer.com/form20.html

Each state can impose additional restrictions on the sale, purchase, and transfer of NFA firearms (Title II)  in addition to the compliance that is required with the National Firearms Act.

In Iowa you can use a Gun Trust or NFA Trust to own the following items that are regulated the the National Firearms Act – (See the limitations below for NFA firearms except suppressors)

• Suppressors / Silencers (legal for civilian and individual ownership including Gun Trusts on 3/31/2016)
• Machine Guns*
• Other Weapon (AOW)*
• Destructive Devices (DD)*
• Short Barreled Shotguns (SBS)*
• Short Barreled Rifles (SBR)*

In Iowa you cannot own the following NFA restricted items.

None although civililan’s can only own Suppressors

*Although Title II firearms are permitted in the state their ownership, except for suppressors,  is severely limited to the following circumstances.

1. Any peace officer.
2. Any member of the armed forces of the United States or of the national guard.
3. Any person in the service of the United States.
4. A correctional officer, serving in an institution under the authority of the Iowa department of corrections.
5. Any person who under the laws of this state and the United States, is lawfully engaged in the business of supplying those authorized to possess such devices.
6. Any person, firm or corporation who under the laws of this state and the United States is lawfully engaged in the improvement, invention or manufacture of firearms.
7. Any museum or similar place which possesses, solely as relics, offensive weapons which are rendered permanently unfit for use.
8. A resident of this state who possesses an offensive weapon which is a curio or relic firearm under the federal Firearms Act, 18 U.S.C. ch. 44, solely for use in the official functions of a historical reenactment organization of which the person is a member, if the offensive weapon has been permanently rendered unfit for the firing of live ammunition. The offensive weapon may, however, be adapted for the firing of blank ammunition.
9. A nonresident who possesses an offensive weapon which is a curio or relic firearm under the federal Firearms Act, 18 U.S.C. ch. 44, solely for use in official functions in this state of a historical reenactment organization of which the person is a member, if the offensive weapon is legally possessed by the person in the person’s state of residence and the offensive weapon is at all times while in this state rendered incapable of firing live ammunition. A nonresident who possesses an offensive weapon under this subsection while in this state shall not have in the person’s possession live ammunition. The offensive weapon may, however, be adapted for the firing of blank ammunition.

Follow this link to find out more about Iowa and NFA restrictions on Title II Firearms

Updated 3/31/2016

Many readers might be wondering what exactly a fuel filter silencer is, I have included a video that shows how it works.  By now many have heard or read about the different types of “do it yourself” suppressors.  Gun owners have learned ways to make oil filter and flashlights suppress firearm noise.  The latest trend is to use fuel filters now.  One company has sold these products on Amazon, and the company even sells the filters as AR-15 suppressors.

ATF has shut down several of these companies. These oil filter suppressors are being sold as “solvent traps.”  They are being marketed as a cleaning device to catch solvents poured down a barrel.  Along with the filters, many online companies also sell adapters to make the suppressors work more efficiently.  The end result is that the ATF caught on quickly and don’t allow firearm users to skirt around these rules anymore.

People can legally purchase Oil and Fuel filters , but the downside of these devices is the fact they still require the same paperwork, tax stamp, background checks that standard suppressors require.  While these suppressors are most likely cheaper than the standard suppressor, they require individuals and those with Gun Trusts to go through all of the same steps for an imitation product.  A failure to do so makes these suppressors illegal to possess, which is probably one reason the Court gave Candelario’s such a harsh prison sentence.

So far it’s been pretty rare for police to arrest a person for possession of a homemade suppressor.  Typically they just request a forfeiture of the items.  According to the plea agreement, Candelario sold and manufactured AR-15 style assault rifles in Maryland without a license.  The ATF caught Candelario by using an anonymous man to purchase the firearms in a gas station parking lot.  This agent purchased six rifles, as well as two fuel filter silencers.

The agent told Candelario that the firearms he was purchasing were for resale in New York. Candelario told the agent he was manufacturing all of the guns and silencers he sold. He even stated he had other customers for whom he was manufacturing AR-15 style firearms.  Candelario did not have any guns or silencers registered to him.

On June 22, ATF agents executed a search warrant at Candelario’s residence in Maryland.  The agents and police officers later told the press they recovered items used to manufacture firearms and silencers. These items included boxes of AR-15 lower receivers; a fuel filter with an adapter used in the assembly of silencers; AR-15 magazines and rifle sights with boxes; and vices, a drill press, and other tools.

For more information on how to legally obtain a suppressor from the ATF using a Gun Trust use the contact us form on this page.

When ATF arrests individuals for selling these items, they often obtain the shipping and sales records for the transactions.  ATF often contacts the individuals who purchased the “illegal items” in an attempt to remove them from the market.  If you have purchased one of these items, it is best to return it and obtain a shipping confirmation for the return that you can show ATF, if they knock on your door.

If you would like to read about one of the recent arrests by ATF follow this link

Each state can impose additional restrictions on the sale, purchase, and transfer of Title II firearms by a class 3 SOT in addition to the compliance that is required with the national Firearms Act.

In Indiana you can own the following items that are regulated the the National Firearms Act

• Form 1  see https://www.GunTrustLawyer.com/form1
• Form 4  see https://www.GunTrustLawyer.com/form4
• Form 5  see https://www.GunTrustLawyer.com/form5
• Form 23 see https://www.GunTrustLawyer.com/form23

These are the forms to use after July 12th,  Form 1,  Form 4,   Form 5,  Form 23

ALL APPLICATIONS POSTMARKED AFTER JULY 12, 2016 MUST BE MAILED TO THE ADDRESS BELOW:

Mailing Address

NFA Branch
P.O. Box 530298
Atlanta, GA 30353-0298

Since the forms change from time to time, we recommend that you download the latest samples of the documents and explanations of what information is required and how to complete a Form 4 or Form 1. These documents are kept up to date and can be found on the NFA Gun Trust Lawyer website at: https://www.guntrustlawyer.com/form4.

Since 41F has been implemented, there are documents that must be sent to the CLEO as well as documents to be sent to the ATF. While there is no CLEO certification anymore, the CLEO does receive a notice that a purchase is being made.

Below are some updated instructions to use with our trusts or those trusts that contain the Gun Trust Lawyer ® trademark

The Following Documents are sent to your CLEO:

1. The CLEO Copy of the BATFE Form 4. If you use the current copy of the Form 4 or Form 1, it will generate 3 copies. The third copy will state CLEO Copy at the bottom of the pages.
2. The CLEO copy of the BATFE Form 5320.23 for each responsible person. The ATF has interpreted 41F to define a responsible person as anyone who can manage, or possess the trust property. With our trusts the 5320.23 only needs to be completed for the Trustees of the Trust at the time of the application. This would include any Co-Trustees, Managing Trustees, Limited Purpose Trustees, and Short Term Trustees, but not any Trustees that have been removed, successor Trustees, or Beneficiaries.

This Following Documents are sent to the ATF:

1. A photocopy of the trust (the first document in this package—approximately 18 pages).
2. The Assignment Page (the last document in this package). It cannot be blank: write $10 or the NFA items you are transferring on it before submitting the page
3. Any Amendments to the Trust that have been signed. Amendments that have not been signed by all parties do not need to be submitted as they are not in effect.
4. Both The ATF Copy and ATF Copy 2 that is generated from the current ATF Form 4 (4) or Form 1 (5320.1). – which must be printed as a double-sided document and signed in Blue or Black ink.
5. Your check for the tax ($200 or $5 for an AOW on a Form 4 or $200 for a Form 1).
6. An Original Form 5320.23 (National Firearms Act Responsible Person Questionnaire) from all Responsible Persons (all active Trustees). On each 5320.23 you should affix 1 Passport Photo on 3e (do not staple) and 2 Original FBI Form FD-258 fingerprint cards for each Responsible Person.
7. A check for $200 or payment information on your completed Form 1 or Form 4.

The final rule affects the NFA regulations by:

• defining the term “responsible person,” as used in reference to a trust, partnership, association, company, or corporation;
• requiring responsible persons of such trusts or legal entities to complete ATF form 5320.23, National Firearms Act Responsible Person Questionnaire and to submit photographs and fingerprints when the trust or legal entity files an application to make an NFA firearm or is listed as the transferee on an application to transfer an NFA firearm;
• requiring that a copy of all applications to make or transfer a firearm, and the specified form for responsible persons (5320.23), be forwarded to the chief law enforcement officer (CLEO) of the locality in which the applicant/transferee or responsible person resides; and
• eliminating the requirement for certification signed by the CLEO.
• In addition, the final rule adds a new section to ATF’s regulations to address the possession and transfer of firearms registered to a decedent.

Who is a Responsible Person?

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.

Examples of who may be considered a responsible person of a trust or legal entity include:

• Settlors/Grantors
• Trustees
• Partners
• Members
• Officers
• Board members
• Owners
• Beneficiaries – if said beneficiary has the capability to exercise any of the powers or authorities enumerated above.

In our trusts, the responsible person is the Settlor/Grantor as well as any trustees who have power to possess or manage.  Successor trustees or Beneficiaries and former trustees are not responsible persons.

What Do NFA Trust or Legal Entity Applicants Affected by the Change Need to Know?

If you are:

   • applying as a trust or legal entity to make and register an NFA firearm on a Form 1, or
• receiving an NFA firearm in the name of a trust or other legal entity as the transferee on a Form 4, or Form 5,
the following information is applicable to your applications:

• all responsible persons named in the trust or legal entity are required to undergo a background check.
• all responsible persons must complete the Form 5320.23 with photo attached and provide two FD-258 fingerprint cards in order to initiate the required background check.  Fingerprint cards may be ordered from the ATF Distribution Center through the online Distribution Center Order Form, or by calling (703) 870-7525 or (703) 870-7528.
• Chief Law Enforcement Officer (CLEO) certification has been replaced with CLEO notification.  The applicant on the Form 1 and the transferee on the Forms 4 and 5 shall forward a completed copy of the application to the chief law enforcement officer of the locality in which the applicant or transferee is located.  In addition, all responsible persons must also submit a completed copy of Form 5320.23, to the chief law enforcement officer of the locality in which the responsible person resides.
• after July 12, 2016, all applications to make or transfer NFA firearms must be submitted on the new Form 1, Form 4 or Form 5 and a Form 5320.23 must be completed by each responsible person of a trust or legal entity.
• after July 12, 2016, CLEO certification is no longer required but applicants must send a copy of the application to make or transfer NFA firearms to their chief law enforcement officer notifying them of the application.
• all applications post marked prior to the effective date of July 13, 2016 will be processed according to the current regulations.
• all applications post marked on or after the effective date of July 13, 2016 will be processed according to the new regulations set forth by 41F.

Order Forms and Fingerprint Cards

All previous editions of the forms are obsolete and will not be accepted.

ATF Form 5320.23 – National Firearms Act Responsible Person Questionnaire
ATF Form 5320.1 – Form 1 – Application to Make and Register a Firearm
ATF Form 5320.4 – Form 4 – Application for Tax Paid Transfer and Registration of Firearm
ATF Form 5320.5 – Form 5 – Application for Tax Exempt Transfer and Registration of Firearm

Please direct 41F related questions to 41F@atf.gov

ALL APPLICATIONS MUST BE MAILED TO THE ADDRESS BELOW:

Mailing Address

NFA Branch
P.O. Box 530298
Atlanta, GA 30353-0298

Phone: (304) 616-4500
Fax:     (304) 616-4501

WHAT NEEDS TO BE SENT TO YOUR CLEO

Based on the FAQ, it appears that legal entities, such as trusts will need to submit a copy of the Form 1, Form 4. or Form 5 to the CLEO for notification. In addition to the responsible persons submitting the responsible person questionnaire Form 23.

Link to ATF FAQ page