Armory Sponsor
Posted: 6/9/2016 3:59:53 PM EDT
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So I have a few items pending on a trust.
Can I add Trustees to my trust after July? Or will the new people need to be finger printed? |
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Yes, you can add them. Anybody on the trust as the time of submission, that meets the ATF's definition of responsible person will need to submit photos, fingerprints and a 5320.23.
You do not have to proactively send them prints after an approval if you add a trustee. |
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Yes, you can add them. Anybody on the trust at the time of submission, that meets the ATF's definition of responsible person will need to submit photos, fingerprints and a 5320.23. You do not have to proactively send them prints after an approval if you add a trustee. The bold above is the only good thing about 41F. No requirement to fingerprint/photo anyone after you receive an approval. Wise gun owner simply never submits a form / trust with more than 1 responsible person. Get approval and add all the trustees you want. |
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Yes
1. you may modify your trust. 2. There is no requirement to notify the ATF of the new responsible persons until the next submission. 3. You may remove trustees, submit forns, then appoint new trustees after submission. 4. There is no reason to wait for approval to appoint new trustees. |
| hmmm...I thought I read somewhere that it had to be post-approval. That may have just been some www yahoo's analysis of 41F though. I'll have to read up on it more. I've been so busy taking care of pre-41F submissions that I haven't really bothered to read every word that the ATF has published about 41F.... |
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page 214 of 41F:
The final rule requires trusts and legal entities to complete and submit to ATF a new form
(Form 5320.23), photographs, and fingerprint cards for each responsible person before the trust or legal entity is permitted to make or receive an NF A firearm. In most cases, ATF does use the "apply" language when talking about responsible persons, but in this section it's talking about submitting responsible person forms before making/receiving. I'm no lawyer, but it would seem that if you applied and then the very next day added some trustees, you may have an issue. If nothing else, there's the whole "spirit of the law" angle that the DOJ might try to leverage against you... |
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page 214 of 41F: In most cases, ATF does use the "apply" language when talking about responsible persons, but in this section it's talking about submitting responsible person forms before making/receiving. I'm no lawyer, but it would seem that if you applied and then the very next day added some trustees, you may have an issue. If nothing else, there's the whole "spirit of the law" angle that the DOJ might try to leverage against you... Quoted:
page 214 of 41F: The final rule requires trusts and legal entities to complete and submit to ATF a new form
(Form 5320.23), photographs, and fingerprint cards for each responsible person before the trust or legal entity is permitted to make or receive an NF A firearm. In most cases, ATF does use the "apply" language when talking about responsible persons, but in this section it's talking about submitting responsible person forms before making/receiving. I'm no lawyer, but it would seem that if you applied and then the very next day added some trustees, you may have an issue. If nothing else, there's the whole "spirit of the law" angle that the DOJ might try to leverage against you... The OP I believe is talking about an application submitted before July 13..? Pre July 13 applications and already approved items within a pre July 13..trust are governed by the old rules. Change what ever you want at will but any new applications using a trust that was pre July 13 will trigger the new rules for everyone that meets "Responsable Person" definition listed in that Trust. Which is a good reason to just leave your pre July 13 trust alone and either start a new one or just do individual. Pretty sure changing people on a post July 13 Trust will require notification if they meet the "Responsable Person" definition. That is the point. They want to know who will have access to the NFA items held by that trust. I think they will  if you make after the fact changes without notification.
I guess it is not all that clear...we shall see. This might fall into the "can I sholder my sig brace" category.. |
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page 214 of 41F: In most cases, ATF does use the "apply" language when talking about responsible persons, but in this section it's talking about submitting responsible person forms before making/receiving. I'm no lawyer, but it would seem that if you applied and then the very next day added some trustees, you may have an issue. If nothing else, there's the whole "spirit of the law" angle that the DOJ might try to leverage against you... Quoted:
page 214 of 41F: The final rule requires trusts and legal entities to complete and submit to ATF a new form
(Form 5320.23), photographs, and fingerprint cards for each responsible person before the trust or legal entity is permitted to make or receive an NF A firearm. In most cases, ATF does use the "apply" language when talking about responsible persons, but in this section it's talking about submitting responsible person forms before making/receiving. I'm no lawyer, but it would seem that if you applied and then the very next day added some trustees, you may have an issue. If nothing else, there's the whole "spirit of the law" angle that the DOJ might try to leverage against you... The whole document contains a lot of information, some of which is not part of the actual changes. There's nothing I found on the new draft copies of the F1/F4/5320.23 that says anything about it. You fill it out at the time of submission and sign/date that it's accurate at that time. I absolutely agree on the "spirit of the law" issue. The snippet I found addressing RP changes is on 123-124: Comments Received Another commenter asked how the rule would apply when, following the transfer, some or all of the responsible persons are replaced, and whether the answer would be different based upon the type of legal entity involved. Department Response With respect to issues raised by the prospect of a post-transfer change in responsible parties, this rule does not require that ATF be notified of such changes. In the NPRM, the Department indicated that it was considering a requirement that new responsible persons submit Form 5320.23 within 30 days of a change in responsible persons at a trust or legal entity. After receiving several public comments on this issue, the Department is not requiring in this final rule that new responsible persons submit a Form 5320.23 within 30 days of any change in responsible persons. The only thing in that section that bothers me is the "following the transfer" wording, which would imply after the 4473 is filled out for an F4. |
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The whole document contains a lot of information, some of which is not part of the actual changes. There's nothing I found on the new draft copies of the F1/F4/5320.23 that says anything about it. You fill it out at the time of submission and sign/date that it's accurate at that time. I absolutely agree on the "spirit of the law" issue. The snippet I found addressing RP changes is on 123-124: Comments Received Another commenter asked how the rule would apply when, following the transfer, some or all of the responsible persons are replaced, and whether the answer would be different based upon the type of legal entity involved. Department Response With respect to issues raised by the prospect of a post-transfer change in responsible parties, this rule does not require that ATF be notified of such changes. In the NPRM, the Department indicated that it was considering a requirement that new responsible persons submit Form 5320.23 within 30 days of a change in responsible persons at a trust or legal entity. After receiving several public comments on this issue, the Department is not requiring in this final rule that new responsible persons submit a Form 5320.23 within 30 days of any change in responsible persons. The only thing in that section that bothers me is the "following the transfer" wording, which would imply after the 4473 is filled out for an F4. Quoted:
Quoted:
page 214 of 41F: The final rule requires trusts and legal entities to complete and submit to ATF a new form
(Form 5320.23), photographs, and fingerprint cards for each responsible person before the trust or legal entity is permitted to make or receive an NF A firearm. In most cases, ATF does use the "apply" language when talking about responsible persons, but in this section it's talking about submitting responsible person forms before making/receiving. I'm no lawyer, but it would seem that if you applied and then the very next day added some trustees, you may have an issue. If nothing else, there's the whole "spirit of the law" angle that the DOJ might try to leverage against you... The whole document contains a lot of information, some of which is not part of the actual changes. There's nothing I found on the new draft copies of the F1/F4/5320.23 that says anything about it. You fill it out at the time of submission and sign/date that it's accurate at that time. I absolutely agree on the "spirit of the law" issue. The snippet I found addressing RP changes is on 123-124: Comments Received Another commenter asked how the rule would apply when, following the transfer, some or all of the responsible persons are replaced, and whether the answer would be different based upon the type of legal entity involved. Department Response With respect to issues raised by the prospect of a post-transfer change in responsible parties, this rule does not require that ATF be notified of such changes. In the NPRM, the Department indicated that it was considering a requirement that new responsible persons submit Form 5320.23 within 30 days of a change in responsible persons at a trust or legal entity. After receiving several public comments on this issue, the Department is not requiring in this final rule that new responsible persons submit a Form 5320.23 within 30 days of any change in responsible persons. The only thing in that section that bothers me is the "following the transfer" wording, which would imply after the 4473 is filled out for an F4. Indeed. To me that, combined with the several times ATF referred to "when applying" means that you can change responsible persons any time you want, with no notification, EXCEPT between the time you apply and get an approval. Posted Via AR15.Com Mobile |
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Indeed. To me that, combined with the several times ATF referred to "when applying" means that you can change responsible persons any time you want, with no notification, EXCEPT between the time you apply and get an approval. Posted Via AR15.Com Mobile Quoted:
Quoted:
Quoted:
page 214 of 41F: The final rule requires trusts and legal entities to complete and submit to ATF a new form
(Form 5320.23), photographs, and fingerprint cards for each responsible person before the trust or legal entity is permitted to make or receive an NF A firearm. In most cases, ATF does use the "apply" language when talking about responsible persons, but in this section it's talking about submitting responsible person forms before making/receiving. I'm no lawyer, but it would seem that if you applied and then the very next day added some trustees, you may have an issue. If nothing else, there's the whole "spirit of the law" angle that the DOJ might try to leverage against you... The whole document contains a lot of information, some of which is not part of the actual changes. There's nothing I found on the new draft copies of the F1/F4/5320.23 that says anything about it. You fill it out at the time of submission and sign/date that it's accurate at that time. I absolutely agree on the "spirit of the law" issue. The snippet I found addressing RP changes is on 123-124: Comments Received Another commenter asked how the rule would apply when, following the transfer, some or all of the responsible persons are replaced, and whether the answer would be different based upon the type of legal entity involved. Department Response With respect to issues raised by the prospect of a post-transfer change in responsible parties, this rule does not require that ATF be notified of such changes. In the NPRM, the Department indicated that it was considering a requirement that new responsible persons submit Form 5320.23 within 30 days of a change in responsible persons at a trust or legal entity. After receiving several public comments on this issue, the Department is not requiring in this final rule that new responsible persons submit a Form 5320.23 within 30 days of any change in responsible persons. The only thing in that section that bothers me is the "following the transfer" wording, which would imply after the 4473 is filled out for an F4. Indeed. To me that, combined with the several times ATF referred to "when applying" means that you can change responsible persons any time you want, with no notification, EXCEPT between the time you apply and get an approval. Posted Via AR15.Com Mobile 41F makes no changes to trust law. You can still add and remove people whenever and however you want in accordance with the trust law of your particular state, the ATF cannot regulate that. They can only regulate what documents you need to submit when you apply for a tax stamp. |
| That makes sense...but couldn't they get you on some kind of "spirit of the law" thing? I mean, if submitting trustee info is required and you blatantly work the system (for the sake of argument, let's just say that you remove all co-trustees on 6/21, apply to make an SBR on 6/22, and add all trustees right back in on 6/23 and then you find yourself in court, isn't the gov's lawyer going to hammer you for intentionally skirting the law? |
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That makes sense...but couldn't they get you on some kind of "spirit of the law" thing? I mean, if submitting trustee info is required and you blatantly work the system (for the sake of argument, let's just say that you remove all co-trustees on 6/21, apply to make an SBR on 6/22, and add all trustees right back in on 6/23 and then you find yourself in court, isn't the gov's lawyer going to hammer you for intentionally skirting the law? In the case you describe I would think that they absolutely would claim a clear intent to subvert Federal Law. Except your dates would need to be after July 13. Any Trust with Stamps already approved or in process before July 13 fall under the old rules. Here is the rub. The new rules clearly state that after July 13 any person listed within a Trust that meets the "Responsable Person" definition must submit the photo, finger print, etc....at the time of application ! The clear as mud intent is to have information on anyone that would have legal access to those NFA items. An Attorney might say to the Feds that Not requiring a notification post approval of changes to "Responsable persons" is evidence the Feds do not really care what happens after they get the money and are not looking out for the public safety but only the revenue. Since notifications are not required post approval why bother for pre approval other than the person initationing the Trust ? Another do nothing law ! Might you win if tested...? I am not going to put myself in that position. The risk reward conversation should be with the attorney you want representing you. |
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Yes, you can add them. Anybody on the trust as the time of submission, that meets the ATF's definition of responsible person will need to submit photos, fingerprints and a 5320.23. You do not have to proactively send them prints after an approval if you add a trustee. I'm confused, I thought the original question was a submission before the deadline? Why would they need fingerprints, photos and a 5320.23 to add someone if it was before the deadline? |
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I'm confused, I thought the original question was a submission before the deadline? Why would they need fingerprints, photos and a 5320.23 to add someone if it was before the deadline? Quoted:
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Yes, you can add them. Anybody on the trust as the time of submission, that meets the ATF's definition of responsible person will need to submit photos, fingerprints and a 5320.23. You do not have to proactively send them prints after an approval if you add a trustee. I'm confused, I thought the original question was a submission before the deadline? Why would they need fingerprints, photos and a 5320.23 to add someone if it was before the deadline? The question posed was "after July"...which I interpreted as after 41F was in effect. |
| Now is it correct that no fingerprints or photographs will be required if your last approval was less than 2 years prior? If so does that also apply to pre 41p approvals? Ex I just received an approved form 4 using my trust. Being pre 41p there were not fingerprints or photographs required...now I apply for another Form 4 (inside the 2 year window) do I have to submit fingerprints and photographs ? |
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That makes sense...but couldn't they get you on some kind of "spirit of the law" thing? I mean, if submitting trustee info is required and you blatantly work the system (for the sake of argument, let's just say that you remove all co-trustees on 6/21, apply to make an SBR on 6/22, and add all trustees right back in on 6/23 and then you find yourself in court, isn't the gov's lawyer going to hammer you for intentionally skirting the law? Why not create another trust for each subsequent NFA item? They're free in my state to create, with no notification or registration to the state or county. I've got 6 trusts currently. Identical except in name, NWRed's Trust#1, NWRed's Trust #2 etc. Certainly not a violation of the "spirit of the law" to subdivide your assets. |
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Now is it correct that no fingerprints or photographs will be required if your last approval was less than 2 years prior? If so does that also apply to pre 41p approvals? Ex I just received an approved form 4 using my trust. Being pre 41p there were not fingerprints or photographs required...now I apply for another Form 4 (inside the 2 year window) do I have to submit fingerprints and photographs ? Fingerprints and photographs are required for every submission. The only item that gets the 2-year waiver is the proof of entity...Instruction (2)(d)(4)(b) says: If the applicant entity has had an application approved as a maker or transferee within the preceding 24 months of the date of filing this application, and there has been no change to the documentation evidencing the existence and validity of the entity previously provided, the entity may provide a certification that the information has not been changed since the prior approval and shall identify the application for which the documentation had been submitted by form number, serial number, and date approved. So, your trust/corp/LLC docs aren't sent if there have been no changes. I haven't seen a form for the certification, but haven't really gone looking. It was also covered in a document they released with several FAQ: Q. Will fingerprint cards and photographs be needed for each person(s) identified as a “Responsible Person?” A. Yes. All individuals identified as “Responsible Persons” are required to submit fingerprint cards and photographs. In addition, each “Responsible Person” is required to complete the Form 5320.23, National Firearms Act (NFA) Responsible Person Questionnaire. (See instruction 2 d. (5) on the Forms 1, 4, and 5.) Fingerprint cards and the Form 5320.23 with photograph attached must be provided upon every application submission. Q. If an application was approved within the preceding 24 months, are fingerprint cards and photographs required to be submitted with a new application? A. Yes. The 24-month exemption for providing supporting “documentation” refers only to the documentation proving the existence of an entity, such as trusts or corporate paperwork. The Form 5320.23 with attached photograph and fingerprint cards are required for each person identified as a responsible person for each submission in order to initiate the required background check. See instruction 2 d. (4) and (5) on the Forms 1, 4, and 5. This was probably the biggest misunderstanding when 41F was first released. Lots of blogs/websites said the 24-month window applied to docs, prints and photos. To somewhat answer your question, though...I haven't seen anywhere that specifically says the approved form that starts the clock has to be post-41F. |
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As far as altering the entity after submission...the ATF says it's fine after Approval, but even they don't know about between Submission and Approval. This was also in the FAQ:
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. |
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The question posed was "after July"...which I interpreted as after 41F was in effect. Quoted:
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Yes, you can add them. Anybody on the trust as the time of submission, that meets the ATF's definition of responsible person will need to submit photos, fingerprints and a 5320.23. You do not have to proactively send them prints after an approval if you add a trustee. I'm confused, I thought the original question was a submission before the deadline? Why would they need fingerprints, photos and a 5320.23 to add someone if it was before the deadline? The question posed was "after July"...which I interpreted as after 41F was in effect. I thought so but I just wanted to make sure I wasn't misinterpreting what you said. I postmarked a few forms yesterday so I was worried I misunderstood the rules. |
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page 214 of 41F: In most cases, ATF does use the "apply" language when talking about responsible persons, but in this section it's talking about submitting responsible person forms before making/receiving. I'm no lawyer, but it would seem that if you applied and then the very next day added some trustees, you may have an issue. If nothing else, there's the whole "spirit of the law" angle that the DOJ might try to leverage against you... Quoted:
page 214 of 41F: The final rule requires trusts and legal entities to complete and submit to ATF a new form
(Form 5320.23), photographs, and fingerprint cards for each responsible person before the trust or legal entity is permitted to make or receive an NF A firearm. In most cases, ATF does use the "apply" language when talking about responsible persons, but in this section it's talking about submitting responsible person forms before making/receiving. I'm no lawyer, but it would seem that if you applied and then the very next day added some trustees, you may have an issue. If nothing else, there's the whole "spirit of the law" angle that the DOJ might try to leverage against you... "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." From https://www.atf.gov/resource-center/...16pdf/download Az |
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I'm glad they've clarified the issue with pre/during/post trust changes.
The real question on the other issue, not having to resend a trust if you've been approved in the last 2 years, is why in God's name would ANYONE trust that? We're looking at year+ wait time again most likely now. You gonna not send in your trust and hope that the ATF doesn't screw that up? Not me! With those wait times it's crazy to try your luck with something like that. Posted Via AR15.Com Mobile |
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Has anyone seen this?
Just stick that to the end of your trust? And I just need to sign it? No need to track down all the other family members on it to sign it either? Hmm this may be much easier than I thought. |
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Has anyone seen this? Just stick that to the end of your trust? And I just need to sign it? No need to track down all the other family members on it to sign it either? Hmm this may be much easier than I thought. Then you just need another one just like it, but that reinstates the existing trustees. ETA: Should have read the instructions first. No need for another amendment. Just shred that amendment when the form is approved to add the existing trustees back on. |
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As my trust is currently set up, I had my parents named as co trustees. They are also beneficiaries. They do not shoot the weapons. I did this more for potential probate reasons in case I got killed at work, etc, or whatever. Then it would be much easier for them to transfer or sell the NFA items.
So now with the new rules, I don't want to drag them both to the local police for finger prints, and get photos. What steps do I need to do to remove them as co-trustees? Is it OK if I am sole trustee? They will still be the beneficiaries. Does the trust document need to be completely redone? Thanks |
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Then you just need another one just like it, but that reinstates the existing trustees. ETA: Should have read the instructions first. No need for another amendment. Just shred that amendment when the form is approved to add the existing trustees back on. Quoted:
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Has anyone seen this? Just stick that to the end of your trust? And I just need to sign it? No need to track down all the other family members on it to sign it either? Hmm this may be much easier than I thought. Then you just need another one just like it, but that reinstates the existing trustees. ETA: Should have read the instructions first. No need for another amendment. Just shred that amendment when the form is approved to add the existing trustees back on. Right up until something goes wrong and they decide to make you the poster child of playing games. They supply the copy of the trust you submitted in court, and you can't provide a copy of the amendment (with proper dates) where everyone was added back. Odds are really low it ever happens...but it's not a 0% chance. |
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I have a question.
So I had placed my beneficiary as a trustee as well originally when I set up the trust; at the time why not, doesn't hurt anything. Well with the new requirements that wasn't going to work so as the Grantor I made an amendment document stating the removal of the other trustee and had it notarized. The trust however still has her name in the original document as a trustee, both on the cover sheet and an individual notarized signature page. I shouldn't alter the trust docs to remove her name, right? Leave the original, original and just include the Amendment page at the end right? Give how the trust is set up I'm just afraid that's going to be an issue. |
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I have a question. So I had placed my beneficiary as a trustee as well originally when I set up the trust; at the time why not, doesn't hurt anything. Well with the new requirements that wasn't going to work so as the Grantor I made an amendment document stating the removal of the other trustee and had it notarized. The trust however still has her name in the original document as a trustee, both on the cover sheet and an individual notarized signature page. I shouldn't alter the trust docs to remove her name, right? Leave the original, original and just include the Amendment page at the end right? Give how the trust is set up I'm just afraid that's going to be an issue. The amendment should clear it up. They look for amendments for that exact reason. You can always stick a post-it on the first page that has her name stating "see Amendment XX which removes Jane Doe as trustee". |
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Quoted: Is responsible person just another name for the Trustee? Or beneficiary as well? Ultimately it depends how the trust is worded. Usually trustees would be responsible persons and beneficiaries would not. The distinction the ATF makes is if the individual can control the property owned by the trust by having he power to add property or remove property from the trust, or has the power to posess trust property, then they are a responsible person. |
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Why not create another trust for each subsequent NFA item? They're free in my state to create, with no notification or registration to the state or county. I've got 6 trusts currently. Identical except in name, NWRed's Trust#1, NWRed's Trust #2 etc. Certainly not a violation of the "spirit of the law" to subdivide your assets. Quoted:
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That makes sense...but couldn't they get you on some kind of "spirit of the law" thing? I mean, if submitting trustee info is required and you blatantly work the system (for the sake of argument, let's just say that you remove all co-trustees on 6/21, apply to make an SBR on 6/22, and add all trustees right back in on 6/23 and then you find yourself in court, isn't the gov's lawyer going to hammer you for intentionally skirting the law? Why not create another trust for each subsequent NFA item? They're free in my state to create, with no notification or registration to the state or county. I've got 6 trusts currently. Identical except in name, NWRed's Trust#1, NWRed's Trust #2 etc. Certainly not a violation of the "spirit of the law" to subdivide your assets. That's a lot of paper to hold onto |
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Has anyone seen this? Just stick that to the end of your trust? And I just need to sign it? No need to track down all the other family members on it to sign it either? Hmm this may be much easier than I thought. Make sure witnesses aren't required in your state. |
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As my trust is currently set up, I had my parents named as co trustees. They are also beneficiaries. They do not shoot the weapons. I did this more for potential probate reasons in case I got killed at work, etc, or whatever. Then it would be much easier for them to transfer or sell the NFA items. So now with the new rules, I don't want to drag them both to the local police for finger prints, and get photos. What steps do I need to do to remove them as co-trustees? Is it OK if I am sole trustee? They will still be the beneficiaries. Does the trust document need to be completely redone? Thanks Male your parents "succesor trustees" that gain power upon your death/incapacity/prohibition |
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