Many Idahoans count on their firearms to keep themselves and their families safe from harm. Unfortunately, one kind of harm can be traded for another when complex regulations surrounding the possession of firearms are not considered during the estate planning process. For owners of certain federally-regulated firearms, there are heightened legal risks. But just as your firearms help you keep yourself and your family physically safe, a properly drafted gun trust can help keep you legally safe as well.
Firearms Subject to the National Firearms Act:
The federal government's attempt to regulate certain categories of firearms began with the National Firearms Act (NFA) of 1934, which was reenacted in Title II of the 1968 Gun Control Act (GCA). The NFA requires registration of certain firearms with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in a centralized national registry. These firearms are commonly referred to as “Title II” firearms or “NFA” firearms. Title II firearms fall into defined categories which are machineguns, short-barrel rifles, short-barrel shotguns, silencers, destructive devices, and Any Other Weapons (AOWs). An item may start its life as a Title II firearm, or a modification may convert a Title I firearm into a strictly regulated Title II firearm. Certain items, such as silencers, are thought of as an accessory by most people, but are legally defined as a Title II firearm in and of themselves.
The NFA was enacted using Congress’ power to tax, and imposes a tax on the making or transfer of any Title II item. For most items, both the making and the transfer tax was set at $200. In 1934, the value of $200 equates to approximately $4,600 in 2024. While the NFA was not an outright firearms ban, the primary purpose was to limit the spread of certain types of firearms to the general public.
Today, the tax on a Title II transfer is still $200 (and $5.00 for a certain category – AOWs). Legally owning a properly registered Title II item is much more affordable today, and consequently, more financially attainable for the average citizen. Although the tax is much more affordable today than in the past, Title II possession comes along with many legal traps for the unwary. Committing an “accidental felony” is far too easy, even for those who are actively trying to comply with the law. Falling into one of these traps could result in 10 years in prison, a $250,000 fine, and the loss of one’s right to possess a firearm.
The Risk of Committing an Accidental Felony:
Navigating the NFA isn’t always easy, and a seemingly innocent act can have devastating consequences. What constitutes “constructive possession” or an “unauthorized transfer” as defined by the NFA can be counterintuitive. As a result, federal firearms regulations make it all too easy to commit an accidental felony.
For example, if you allow your brother to borrow your silencer, or your wife to know the combination of the lock to the safe or locker where your short-barrel rifle is stored, this is technically an unauthorized “transfer” of those regulated items. An unauthorized transfer of a Title II firearm is an NFA violation and a possible felony conviction for you and your loved one.
The risk derives from the technical nature of the regulations. A Title II firearm can only be possessed by the registered person (generally the owner) entitled to possession of the firearm and can only be registered to one person at a time. The registered possessor of the firearm cannot be changed until a transfer tax has been paid and the ATF has approved the transfer. Possession without obtaining ATF approval is a felony violation of the NFA for both the transferor and transferee. Possession does not solely equate to ownership, but rather the mere ability to access the firearm (i.e. ability to exercise exclusive dominion and control).
Such a risk is the legal reality. . . unless you have a Gun Trust.
NFA Compliant Gun Trusts:
Gun Trusts are useful tools that help individuals comply with firearm laws. A trust is considered a person for relevant regulatory purposes under the NFA. A trust can be the registered possessor of the firearm, and certain members of the trust, who are called the trustees, can possess the firearm independently, saving time and money. The trustees are considered “responsible persons” who undergo background checks when there is a making or transfer of an NFA firearm into the trust seeking ATF approval. Making someone a member of your trust is a great way to keep yourself, your family, and your friends safe from committing an “accidental felony.” This is one of the many reasons why a Gun Trust can be such a useful estate planning tool.
In addition to providing a structure that minimizes technical violations, the terms of a properly drafted Gun Trust will also make regulatory compliance easier. The terms of the trust provide specific instructions to ensure that trustees comply with the NFA. The trust also facilitates probate avoidance for the transfer of the Title II firearms upon your death, which eliminates the risk of accidental NFA violations during the probate process.
If you are interested in a Gun Trust, or if you have questions about federally regulated firearms, call our office today to schedule a consultation with Macy White.
This article is not intended to replace legal advice applicable to your situation and should be used only for informational purposes. Consult with your legal or tax advisors before implementing any suggestion contained herein. Ms. White is an associate attorney with the firm of Sandra L. Clapp & Associates, P.A. and can be reached at mwhite@clapp-legal.com or (208) 938-2660.
Comments