The biggest misconception of the NFA is the definition of Transfer. Most lay people (non lawyers) would use the definition found in a dictionary to interpret a transfer. Unfortunately that is not the way it works with the law. When a word is defined in a statute, you must read the statute with the definition that is contained within. In this case the word transfer creates many pitfalls for the typical consumer. Until recently if you asked anyone if it was ok to let someone else use your silencer, SBR, or Machine Gun while in your presence at the rage, they would almost always say it was permitted.

In fact, this is a violation because it is a transfer under the NFA. Only in the last year or so, since I began pointing it out to consumers has there been anything written on this topic. I like to tell people that in a way its like speeding, often done, and rarely does anyone ever get caught. In fact, you probably do it daily and rarely get a ticket. Unfortunately if you get caught letting someone use a Title II firearm, its not a $50 ticket. The criminal penalties include up to 10 years in Jail and $250,000 in fines for each violation.

Not at this time, but the U.S. Department of Justice Office of the Inspector General Evaluation and Inspection Division has published Report Number I-2007-006 where they address these issues and other problems with the ATF and NFACTA. One of their main concerns is the lack of consistency between procedure and interpretation throughout the agencies.

The NFA's original purpose was to allow the government to arrest the gangsters when they were unable to convict them of the crimes they were suspected of.

The typical purchase is either done by an individual or a trust. The trust offers many protections that can never be achieved with individual ownership. The biggest of these is protecting against constructive possession. With an individual purchase, you are other only one who can possess, use, or have access to the weapon. This means if your friend, spouse, or other family member has the ability to possess the item, there is a violation of the NFA. When your spouse knows the combination to your gun safe, you have allowed her the ability to posses the items and created a situation called Constructive Possession. The trust allows for others to use and be in possession of the items restricted under the NFA.

Unfortunately most individuals who choose the trust round do not understand the NFA much less what a trust is or how it works. Part of the process we go through when we setup a trust is to teach our clients how a trust works, how to use it, how to make the purchase properly and how to avoid the common procedural violations with the NFA. We have reviewed many trusts created by individuals and find that the vast majority of them are invalid and even those that are valid did not involved a legal transfer to the trust. It is important to remember that just because you get a Form 1/4 back from the ATF, this is no guarantee that you are in compliance with the NFA. If you trust is invalid, then the ATF has granted you permission to do a transfer that you cannot accomplish.

More importantly, the ATF grants permission to transfer the gun from the dealership or transfer agent to the trust. Unfortunately this is not what usually happens. The typical process is that the individual makes the purchase and then transfers his rights to the trust. Even though A + B = C, we have not gotten A or B approved the the ATF and there are 2 violations of the NFA. What happens when you have an angry neighbor, ex-spouse, co-worker, competitor, or law enforcement officer who decides that reporting these violations is the best way to seek revenge.

It is very important to make sure the purchase transaction matches the permission granted by the form 4. The trust should make the purchase. If that is impossible or the transaction was completed prior to the creation of the trust there is a way to document it properly but it is important that it be done or your Title II firearm is illegal and you will have violated the NFA.