Reply To: Adding or removing "Responsible Persons"
- Posts: 39
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.
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.