ATF Regulation Goes Into Effect That Affects Gun Trusts - ATF 41F

ATF 41P has gone from a proposal to a final rule (with some serious modifications).  Now ATF 41P is known as ATF 41F (the P in ATF 41P stood for Proposal, and the F in ATf 41F stands for Final rule).  ATF 41F is codified in the Federal Register as 27 C.F.R. Part 479 (C.F.R. stands for Code of Federal Regulations - and it is the place where the rule of law as issued through administrative agencies such as the ATF is recorded rather than laws that are enacted through Congress).  


What was originally sought in ATF 41P has been scaled back quite a bit in ATF 41F, but there are some major changes to how gun trusts will be processed by the ATF nonetheless.  ATF 41F was issued on January 4, 2016 and becomes effective 180 days after it is first published in the Code of Federal Regulations (C.F.R.).  This means that gun trusts will be processed as they always have been until June 2016.  A very brief overview of the changes are:


  • The Grantor (person who creates the trust) and the Trustee/s will have to submit a passport-style photograph and fingerprints along with their ATF Form application

  • The Grantor and the Trustee/s will have to send a copy of their ATF Form application to the Chief Law Enforcement Officer (CLEO) in their locality prior to their submission of the ATF application.  The original proposal would have required getting a CLEO signature of approval in order to even be able to apply to register a NFA weapon.  This has been modified significantly and now merely requires the applicant to notify the CLEO by simply mailing a copy of ATF Form 1 (application to manufacture a NFA item) or Form 4 (application to transfer a NFA weapon from one person/entity to another person/entity).

  • There will be a new form created by the ATF called Form 5320.23, which will be required to be submitted to the ATF in addition to either Form 1 (ATF Form 5320.1) or Form 4 (ATF Form 5320.4).  ATF Form 5320.23 is basically a personal information form and this is the form that applicants will have to attach their passport-style photograph to and list the Trust name and address where the firearms will be primarily kept. As of January 2016, this form does not yet exist, but it will be available and be required to register your Gun Trust by June 2016.  

  • There is a change in the law that will make things much easier for estate planning and succession purposes.  Under the pre-ATF 41F law, when a person who had NFA weapons in their estate died, the executor of the estate had to first apply with the ATF to be eligible to be in possession of the NFA weapons, or would otherwise be at risk of committing a felony.  Under ATF 41F, an executor/administrator of an estate will be able to be in possession of NFA weapons for the purposes of wrapping up the deceased's estate.

As of June, 2016, Applications to Make or Transfer a NFA firearms with a Gun Trust will have to be Accompanied with a Photo and Fingerprints


The new ATF regulations require all "responsible persons" of a Gun Trust to submit some personally identifiable information such as a passport-style photograph and fingerprints along with their application to make or transfer a NFA firearm.  "Responsible Person" has a very specific definition, defined in 27 C.F.R. § 479.11, which is: 


"In the case of a Trust, those persons with the power or authority to direct the management and policies of the trust [and] include[s] 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."  


Beneficiaries do not fit into this definition unless and until the trust gives the beneficiary ownership rights over the trust property (the NFA firearms).  Basically, the beneficiary would not ordinarily come into possession of the trust property (the NFA firearms) unless and until the trust Grantor (trust creator) dies and the NFA weapons pass along to the beneficiaries.  Thus, the only people who would have to submit a passport-style photo and fingerprints would be the Grantor and the Trustee/s.  The Secure Gun Trust allows for the appointment of as many Trustees as the Grantor sees fit.  The appointment of these Trustees can be done at any point after the creation of the trust and does not necessarily have to be done when the trust is first created.  Later appointed Trustees would not have to submit their passport-style photograph and fingerprints when first applying to register the Gun Trust and the NFA firearm with the ATF.  


New CLEO Requirement


The original proposal in ATF 41P sought to have all "Responsible Persons" in a Gun Trust be required to obtain written approval from the Chief Law Enforcement Officer (CLEO) in their locality that the individual was eligible to be in possession of a NFA weapon.  This part of ATF 41P received stiff opposition and the ATF compromised on the position by now requiring all "Responsible Persons" to simply notify their local CLEO that they are applying for a NFA weapon.  A "Responsible Person" can satisfy their requirement to notify their CLEO by simply mailing a completed copy of their respective ATF form prior to mailing the NFA application to the ATF.  This will be ATF Form 1 (if applying to manufacture a NFA firearm), ATF Form 4 (if applying to have an existing NFA item transferred to them), or a completed copy of ATF Form 23 (ATF Form 5320.23, which is a new form created by ATF 41F that contains information such as the Gun Trust name, primary location of NFA items, and photograph of all "Responsible Persons" applying with the ATF).  


The new regulations in ATF 41F only require that a copy of whatever ATF form is being submitted to the ATF to be submitted to the CLEO prior to the ATF submission.  This requirement could be satisfied by mailing a copy of the completed form to the CLEO the day before mailing the application to the ATF.  The CLEO may be a different entity depending on where the individual applying for NFA firearms lives, but generally this will be the local chief of police, county sheriff, head of the State police, or State or local district attorney, or prosecutor.  The notification requirement of ATF 41F could be satisfied by mailing a copy of the ATF form to any one of those LEOs.  


New Form that has to be Submitted to ATF Along with Usual Form


ATF 41F has created the new requirement of submitted ATF Form 5320.23 along with the usual forms that would be submitted to the ATF.  ATF Form 1 would be submitted in order to apply to register a self-made or modified NFA firearm.  ATF Form 4 would be submitted to the ATF in order to purchase a NFA firearm (in order to have it legally transferred from the seller to the buyer).  When using a gun trust to submit Form 1 or Form 4 to the ATF, a copy of the gun trust would have to be submitted along with the Form 1 or Form 4.  Under the pre-ATF 41F rule, if someone applied to the ATF as an individual they would have to submit Form 1 or Form 4 along with a passport-style photograph, fingerprints, and a CLEO certification.  Now that ATF 41F is here gun trusts have to name all "Responsible Persons" for the gun trust, and must in turn submit some personal information for each "Responsible Person."  This led to the necessity for the creation of a new form in order to identify each "Responsible Person" for the gun trust.  


Post-ATF 41F, now in order to submit a Form 1 or Form 4 to the ATF with a gun trust, the ATF Form 1 or Form 4 must be submitted along with a copy of the Gun Trust, along with ATF Form 5320.23 for each "Responsible Person" of the gun trust.  "Responsible Person" is defined above and would include the Grantor of the gun trust and all Trustees of the gun trust.  The Secure Gun Trust allows the appointment of as many co-trustees as the grantor wants, and the co-trustees can be appointed at any time.  So the Secure Gun Trust could be registered with the ATF with only one Trustee named (and a corresponding Form 5320.23 for that Trustee), and then after receiving an ATF tax stamp and application approval name more co-trustees.  


The new ATF 41F regulations do not go into effect until June, 2016, but if you are submitting your application to register NFA firearms near the deadline (in May 2016) it would be the best practice to comply with all the requirements of ATF 41F before they officially go into effect.


ATF 41F Makes the Inheritance Process Easier


Pre-ATF 41F there was a real issue for people who had NFA weapons and then died and left the NFA weapons to loved ones.  The executor (or administrator) of the deceased's estate would not be in possession of the NFA firearms without first registering with the ATF.  The registration process has always taken a long time with the ATF, so this delay really screwed things up for people who did not properly plan out their estates.  This issue was never a problem with the Secure Gun Trust, as the Secure Gun Trust requires that NFA weapons be held in trust until the beneficiaries have registered with the ATF and their ownership is clear before receiving the NFA firearms.  This safety measure by the Secure Gun Trust prevents the possibility of the beneficiaries committing a felony by coming into possession of NFA firearms without being legally entitled to do so.  


The Secure Gun Trust has a number of safety measures in place designed to protect the Grantor, the Trustees, and the Beneficiaries in their use and enjoyment of the NFA weapons as well as ensuring a smooth transition process after the Grantor has died and it is time to transfer ownership of the NFA weapons from the Gun Trust to the beneficiaries.  We hope you consider using a Secure Gun Trust in purchasing your NFA weapons, using your NFA weapons during your life, and passing along your NFA weapons after your death.


Disclaimer:  The forms and information contained on this website are not a substitute for the advice of an attorney.  The gun trust form you are about to purchase is created at your direction and completed by you.  Your purchase does not come with legal support or advice, nor does it create an attorney client relationship.  The information provided on this website, and the informational pamphlet you will receive upon your purchase is generally available but is provided here for your convenience in making your own gun trust.  Nothing on this website or in the documents that you purchase is a substitute for the advice of an attorney and does not create and attorney-client privilege or relationship.