Adding or removing "Responsible Persons"

Home Forums NFA Tracker Form 4 Questions Adding or removing "Responsible Persons"

This topic contains 7 replies, has 6 voices, and was last updated by Fulliautomatix Fulliautomatix 9 months, 2 weeks ago.

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  • #76098

    dgdamore
    Participant
    • Posts: 21
    Join Date: 10/12/2016

    The ATF’s FAQ sections states this with regard to adding responsible persons to an approved Form 4 Trust: (current 41f regs)

    Q: Will new responsible persons, added after the making or transfer, be subject to the same requirements?

    A: Once an application has been approved, no documentation is required to be submitted to ATF when a new responsible person is added to a trust or legal entity. However, should a responsible person change after the application has been submitted, but before it is approved, the applicant or transferee must contact the NFA Branch for guidance.

    This seems odd to me. So all responsible persons of trust must fill out questionnaire including submitting fingerprint cards and photos, but once trust is approved, additional responsible persons can be added without any further documentation? Am I understanding that correctly?

    My next question would be can responsible persons be removed without documentation being submitted to ATF?

    And the final follow-up question is, What is to stop anyone from removing all but one responsible person prior to transferring a NFA firearm to trust, then after approval, re-adding previous responsible persons? Thus, avoiding the additional paperwork, etc. that would be required for additional responsible persons?

  • #76100

    Bnieman
    Participant
    • Posts: 17
    Join Date: 10/12/2016

    1. yes
    2. yes
    3. nothing

    Quite a mess this created for a law that does nothing. The only thing the law embraces is legally making a “person” responsible. Being that a trust is not a person but an entity. Obama believed criminals could get weapons by hiding in trusts. Makes absolutely no sense except that a person not an entity would be responsible if a criminal was granted access to weapons through a trust which was already illegal before 41f went into effect. Bunch of fun BS huh?

  • #76101

    Bnieman
    Participant
    • Posts: 17
    Join Date: 10/12/2016

    Amend your trust making yourself the only responsible person when you file under 41f. It will stand good for 2 years without having to resubmit your trust on future nfa purchases. add and take off people as you see fit.

  • #76173

    tf2addict
    Participant
    • Posts: 18
    Join Date: 10/12/2016

    Hard to believe they didn’t think of this loophole when crafting 41F

  • #76177

    NikDFW
    Participant
    • Posts: 10
    Join Date: 10/12/2016

    It’s not a loophole at all. The fundamental type of trust we are utilizing is a Revocable Grantor Trust. Essentially the person who establishes the trust can then transfer property in and out of the trust, as well as add or remove trustees and beneficiaries at will. Once the Grantor passes away, the trust essentially becomes irrevocable. This means that the document at the time of death is, for all purposes, unchangable. The ATF is working within the confines of Trust Law. If they required an irrevocable trust from the onset then there would be true trust ownership and no one person would have ownership, and the trust would be unchangable from the time of purchase. This would make it very difficult to enact something like 41f because the only responsible party would be the trust-although they could attempt to force the trustees and beneficiaries to undergo background checks. The conundrum would be if an irrevocable trustee or benefiary failed the background check-a new trust with a new name and EIN would be required. Plus, dealers would be forced to delay selling the item until after the Trust was approved because the item could not be sold or refunded since the trust is irrevocable. And depending on the wording the Grantor(s) may not have access to the assets in the trust.

    • #76178

      NikDFW
      Participant
      • Posts: 10
      Join Date: 10/12/2016

      If you were to strip the trust to one Grantor and one beneficiary at the time of purchase for ease of submission and quicker processing, you can then add and remove trustees and beneficiaries any time after the stamp is approved. Even for temporary usage. It’s especially vital if you had a significant life event such as birth or marriage in which a new person would be living in the home where you store the NFA item. They can attempt to prove constructive receipt-which I believe is felony carrying up to 10 years.

      • #76183

        Derk
        Participant
        • Posts: 11
        Join Date: 10/12/2016

        What is constructive receipt? My wife wasn’t added to my trust originally just because she was not there when I made the purchase.

        • This reply was modified 9 months, 2 weeks ago by  Derk.
  • #76185
    Fulliautomatix
    Fulliautomatix
    Participant
    • Posts: 36
    Join Date: 10/12/2016

    I believe that is an offshoot of “constructive intent/constructive possession”. Basically it says that even though your wife isn’t physically holding the NFA item, by her having access to it (via living in the same house as an unsecured NFA device) she actually IS in possession of it (ie: she is in receipt of it).

    A popular stance posited is that only the person on the Form 4/1 should have access to the NFA item. If the one spouse is not on the trust, they should not have access to the NFA device. This means securing it in a manner that it is not accessible to that spouse (or other people in general). ie: a safe or lockbox to which only trustee/grantors have the key or combination.

    Wikipedia states:
    Constructive possession is a legal fiction to describe a situation where an individual has actual control over chattels or real property without actually having physical control of the same assets. At law, a person with constructive possession stands in the same legal position as a person with actual possession.

    A popular application of this is when the driver of a car is charged with possession of a controlled substance when one of the passengers in the vehicle is in physical possession of it. Basically the driver is assumed to have knowledge and control over the things in the vehicle, and is therefore held equally responsible. Same goes for households. Homeowners (likely the parents) can be legally held responsible for illegal items found in the home, even though they may be totally unaware of their presence (like stuff their kids may bring home). Again, because they are the homeowners they are assumed to have knowledge and control over everything in the household.

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