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Disclaimer: I am not an attorney. The information provided in this article is the result of research performed online and through direct contact with legal resources. Individuals interested in obtaining NFA weapons are encouraged to contact an attorney or other qualified professional for guidance.
As a result of the DIY AR-15 Build series, I have been considering building a short barreled rifle (SBR). An SBR is legally defined as a rifle with a barrel shorter than 16 inches, or an overall length of less than 26 inches. Pursuing that route requires registering the rifle as a Title II weapon (often referred to as an NFA weapon) under the National Firearms Act (NFA) and paying an excise tax.
The Title II definition reads as follows:
Title II of the Gun Control Act of 1968 is a revision of the National Firearms Act of 1934, and pertains to machine guns, short or “sawed-off” shotguns and rifles, and so-called “destructive devices” (including grenades, mortars, rocket launchers, large projectiles, and other heavy ordnance). Acquisition of these weapons is subject to prior approval of the Attorney General, and federal registration is required for possession. Generally, a $200 tax is imposed upon each transfer or making of any Title II weapon.
For the purposes of this discussion, the focus will be from the perspective of making an NFA weapon as it might relate to the DIY AR-15 Build series, as opposed to transferring an existing NFA weapon.
Individuals and Trusts
There are two common options for registering a Title II weapon. (A third option — doing so through a limited liability company or corporation — exists, but will not be addressed here). The first option is to complete and submit the necessary forms as the individual applicant.
The second is to establish an NFA Trust and register the weapon into the Trust as an asset. One or more Trustees will be registered to administer the Trust’s assets.
If you choose the first option and wish to register the weapon directly, the ATF requires that, prior to building an SBR firearm, the individual must submit ATF Form 1 (5320.1), Application to Make and Register a Firearm, to the Bureau of ATF, NFA Branch, and receive approval. This is critical: you must receive approval before acquiring a weapon component that falls under the classification of the National Firearms Act. You can purchase a barrel shorter than sixteen inches without it being considered an NFA item but the muzzle break must be permanently attached, and the total length of the barrel and muzzle break combined must be at least 16 inches. Ownership of NFA items (even if unassembled), without an approved form, can be interpreted as ability or intent to construct an NFA weapon; you are then subject to prosecution and fines.
In addition to ATF Form 1, the application must also submit ATF Form 4 (5320.4) in duplicate. The applicant completes the certification on the reverse of the form and must have the “Law Enforcement Certification” completed by the chief law enforcement officer. The applicant must also include a 2-inch by 2-inch photograph that was taken within the past year with each ATF Form 4 (proofs, group photographs or photocopies are unacceptable). The applicants’ address must be a street address, not a post office box. If there is no street address, specific directions to the residence must be included.
If State or local law requires a permit or license to purchase, possess, or receive NFA firearms, a copy of the applicants’ permit or license must accompany the application. A check or money order for $200.00 shall be made payable to ATF by the applicant. All signatures must be in ink.
Fingerprints also must be submitted on FBI Form FD-258, in duplicate. Fingerprints must be taken by a person qualified to do so, and must be clear and classifiable. If wear or damage to the fingertips do not allow clear prints, and if the prints are taken by a law enforcement official, a statement on his or her official letterhead giving the reason why good prints are unobtainable should accompany the fingerprints.
The construction of the NFA firearm may only be conducted upon approval of the ATF Form 4 by the NFA Branch. If the application is approved, the original of the form with the cancelled stamp affixed showing approval will be returned to the applicant. If the tax application is denied, the tax will be refunded.
If you wish to register the weapon through an NFA Trust, the process is almost identical with the exception of the need for fingerprints, photographs and a chief law enforcement signature due to the fact that a Trust is an entity and not a living person.
So based on the above, common sense would lead one to opt for the Trust. Besides the obvious fact that there are fewer hoops to jump through, there are other benefits that should be motivation to opt for an NFA Trust.
- A Trust can identify multiple Trustees, which translates to multiple people whom are authorized to manage the NFA weapon. Without a Trust, only the approved applicant can maintain, fire or transport the NFA weapon.
- In the event of incapacitation or death, the NFA weapon is maintained by subsequent Trustees identified in the Trust, provided they are of legal age. This eliminates the need to submit a transfer of registration to AFT and pay the excise tax fee.
- A Trust can provide a layer of anonymity with respect to who the actual NFA weapon owner is, provided the name of the Trust does not reflect the name of the Trust creator, e.g. The John Doe NFA Trust. Instead, consider more generic names such as NFA Collector Trust.
There are other benefits a Trust can provide, but of course they come with a cost. You should discuss those benefits with a qualified attorney. One thing to keep in mind is that even though non-NFA assets, such as bank accounts, automobiles, and property, could be placed in an NFA Trust, this should be avoided. Don’t muddy the waters. Create a separate Trust for your other assets.
Speaking of attorneys, one of the most frequently returned search results for NFA Trusts is for guntrustlawyer.com. I’ve contacted them and discovered that they are merely a paperwork processing service that forwards the completed forms to an attorney local to the requestor’s area for review.
The fee they quoted me was $600.00, which covers the service fees for both their service and the assigned attorney. The fee may be worth the convenience, but you may want to consider finding a local attorney familiar with NFA Trusts so that you can meet face-to-face to discuss your specific needs.
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ok so my questions is i bought a lower receiver to build an ar but i havent bought the upper receiver yet and i was thinking instead of doing this i can build a sbr im still ok by submitting the paperwork and wait to get approved and then get the upper or should i just build the ar and leave it like that so i wont get in trouble i dont know if explain myself really good is just that want to go the safe way and not get in any sort of trouble
Being new to the AR world, I've been reading quite a bit and found the article informative. While I was not really interested in setting up a SBR configuration, the thought had occurred to me that it might not be a bad idea to have the parts on hand. Obviously though that would actually be a bad idea as it would be construed as Intent. One question I have though would be what is the technical and/or legal difference between a SBR configuration and a pistol build of the AR platform.
David, Basically, the pistol build doesn't have a butt stock on the lower receiver and the SBR does. If you don't need to "shoulder" the weapon but can instead fire from the hip or clasp the buffer tube in your armpit you can get a "pistol" lower and skip all the need for additional paperwork and cost.
I have a trust, no such thing as a NFA trust. I have a SBR on a trust from WillMaker Plus. Would not hesitate to add another Class III item to the trust using WillMaker Plus. If you think attorneys don't have a template for drafting any document you are mistaken. Most work is completed by interns and paralegals and only briefly reviewed by the attorney if at all. Spend the money if you wish but there are other options available.
Quicken Willmaker software is made my more lawyers than the “NFA Trust” The reason it is $20.00 is because of economies of scale.
There are a lot of opinions on the merits of a non-specific trust created by a $20 program. Here is my take, use an attorney for this. There are good attorneys and bad ones but it is worth a few extra bucks to get this done by a professional.
I have pant-load of money tied up in NFA goodies. My concern isn't whether the trust is good enough to get a transfer done once or twice, but rather will it hold up down the road in a court of law. You must know that the trust route for purchasing/transferring NFA items must put a real bug-up-the-ass of the NFA branch. Do you want to find out that Quicken's Willmaker program isn't worth a damn when these come under real scrutiny down the road? How about when one Settlor dies?
It depends on your situation and it might not be worth it to you for an old piece of muffler pipe or an SBR but if you start laying out hard earned dollars for machine guns, your perspective will change. I wouldn't piss on a copy of Quicken Willmaker if it was on fire and my bladder was ready blow.
Just another opinion.
Oh I get the considerations that need to be examined over flat out saying you're going to PMITA jail if you use Willmaker. Definitely check around your state laws and see if it is an available option or even of benefit. I used the version from 2008 and as Andrew stated, beneficiaries were required, though I don't recall if it stated they must be over 18. For those looking into this route, some states even require the Trust be submitted to an official body like a state court or local court. In AZ all you have to do is get it notarized for it to be legal.
Couple of issues, the two forms listed in the personal section are mutually exclusive there would be very few instances where they would be used together. The Form 1 is for manufacturing of firearms, and the Form 4 is for tax paid transfers after a weapon is made.
Now I think you are likely thinking about the Certificate of Compliance (5330.20) which is the other form required with both Form 1s, and Forms 4s). That form is available here (along with all the other forms needed):
Second you mention that a permanently attached muzzle brake is required for a SBR upper to be legal before you get the Form 1 back. That is correct, but it can be any muzzle device. The other option is to start with an AR Pistol which allows you to legally have the weapon completed with a sub-16" barrel (using a pistol receiver extension), and you just can't put a carbine or rifle receiver extension until you get the Form 1 back. Though as long as you have the AR pistol completed, and have another AR-15 that can use a receiver extension (ie you have a legal configuration for all your AR-15s, and a legal use for all your parts) you can legally have the receiver extension in the house before the Form 1 is back.
Muzzle break? Shouldn't it be muzzle brake since it acts as a brake of sorts and doesn't really break anything?
jmbrowning, what basis do have for making the claim you did?
In my personal experience, I have done multiple applications to BATFE using a trust that was indeed formed by using Willmaker. Recently BATFE has been requiring a full copy of the trust for review prior to approving or denying any application, they used to only require the Schedule A attachment. All of my applications have been approved with a tax stamp affixed. I'm not in the least bit worried about the doubled penalties you've described. That being said, constructive intent is a very real possiblity to get hit with. As long as you don't have all the parts to make a SBR prior to getting an approved form1, you'll be ok.
As for your question, what type of item are you intending to make? If it is just a SBR from an existing rifle, then all you need is an approved form1. You will need to engrave the receiver in a conspicuous location to a defined set of dimensions and requirements. Those are easy enough to look up.
There is not such thing as a "NFA Trust". Just buy a copy of Quicken Willmaker to make your trust. It costs $20.00 and no lawyer is required.