Form 5 For Repairs
Posted 11 October 2005 - 02:26 PM
Posted 11 October 2005 - 02:32 PM
Furthermore, TNKen can back me up here, I highly recommend that you do not use a Form 5 for repair work. The reason is that a Form 5 will give the repair shop a title to the NFA firearm with the ATF. The repair shop could then use that Form 5 as the basis for a Form 3 or 4 to transfer the gun to someone else. Without a Form 5, there is no way this can happen.
While this may seem like an abstract possibility, consider if the shopowner dies or goes bankrupt and the possibility your gun may be disposed of (with you desperately fighting to get it back). If that happens, you can never recover the gun from the new owner and only have a claim against the bankrupt repair shop or the estate of the dead guy.
Posted 11 October 2005 - 03:23 PM
BATFE Forms 5 do NOT convey "title", or "ownership", or any other form of lawful committment of property, OTHER THAN a temporary registration in the NFRTR. This is a common misconception. Forms 5, nor ANY other ATF Registration and Transfer Recording Form, (i.e., Forms 1, 2, 3, 4 or 5) have the legal signifincance of property title (ownership). "Registration" and lawful titularture are NOT related.
While BATFE NFA Branch has agreed through an Industry memorandum and publication of an Organizational Rule Change to reduce "their" requirement of a filing and approval of Forms 5 for (specifically) "...repair, or other minor gunsmithing", one must ALWAYS remember that there is nothing in the published Congressional Acts to back up their position. Bottom line: Despite what BATFE says is acceptable to THEM, one must always rememeber that should any problems arise to the level of a (possible) criminal indictment, it will NOT be the BATFE who will be prosecuting you, it will be the USAGO, and they have NO compelling measure to follow other than what is specifically written under the relavent Acts.
While it is not likely any of this will ever be a forseeable issue, a prudent individual will still file Forms 5 to be in full compliance with the applicable statutes. The ONLY instance where we feel that there may be some defensible application of this industry-tolerant stance is for the ORIGINAL manufcaturer of the NFA device to receive in, sans Forms 5, a device they actaully manufactured and registered.
Just making the case. As always, YMMV.
Posted 11 October 2005 - 03:39 PM
So is there any special stipulation if the repair shop has only a type 01 FFL?
Posted 11 October 2005 - 03:43 PM
No forms are needed for repairs.
Posted 11 October 2005 - 08:25 PM
You asked if anyone *really* does them anymore....the answer is "..Yes, I do". I am 07 FFL/C2 SOT Licensee, have been for a few decades, and presently am with a major Industry manufacturer. I've been doing this NFA stuff since 1980.....so I have a little perspective on the issue. I do them because the Law specifically instructs as to the required procedure for affecting a temporary transfer registration to the NFRTR. No NFA Branch letter, "industry accomodation", or other expedient decison can modify the Act that proscribes the required conduct.
Now, in our daily business, we do NOT require a customer to file if they are sending back a NFA device we actually manufactured originally, our (well paid, "inside-the-Beltway") Legal Advisor said that of all cases where he would least be worried is the one where a customer is returning our OWN product for repair under this "policy", but for anybody else's prodcuct....we DO require a Form 5 transfer to affect work on the item.
Incidentlly, you may file a Form 5 transfer to ANYBODY AT ALL, they do NOT have to be an FFL licensee. If you knew, say, somebody who was an excellent welder and you wanted work done on your MG, you could lawfully file a Form 5 to them, affecting a temporary registration in the NFRTR to them.....you will immediately see the value in doing such as that eliminates any questions of proper registration by them, and it eliminates any possible impropriety on your behalf of a possible unlawful Transfer......that is the angle you SHOULD view this from. Sending it to a FFL licensee is only marginally acceptable sans Form 5. Honestly, I would again ask you to consider the "what if's" should ANYTHING go wrong in the process.......
The filing of the proper form actually PROTECTS your ownership interests in the weapon as BATFE NFA Branch CANNOT transfer back the weapon to anybody but the original Registrant, period, end of story. This is a "secondary feature" of the Form 5 when used for REPAIR purposes ONLY.
Personally, you should ask yourself if you would be any more willing to wait the MONTHS or YEARS to straighten something out if the gun were seized and tied up in any legal issues.....such as the situation you suggest whereby a Gunsmith goes belly up.......the gun would be immediately returned to you courtesy of ATF determining that you are the lawful original Registrant with an approved, filed, Form 5.......good luck otherwise!!
Posted 11 October 2005 - 08:29 PM
Posted 11 October 2005 - 09:11 PM
Under the ATF own FAQ section they specifically say "suggested", not "required.
Frankly why would anyone want to submit a form that they only say is suggested?
It would only add time, as I unfortunately found out, long before I found this information.
I won't rant on my opinion on the legality of the Form 5320.20, will save it for later.
(I5) May a licensed gunsmith receive an NFA firearm for purposes of repair? [Back]
Yes, for the sole purpose of repair and subsequent return to its owner. It is suggested that the owner obtain permission from ATF for the transfer by completing and mailing ATF Form 5 to the NFA Branch and receive approval prior to the delivery. The gunsmith should do the same prior to returning the firearm. Only the face of the form need be completed in each instance. ATF Forms 5 may be obtained from the Bureau of ATF, NFA Branch, Washington, DC 20226, (202) 927-8330.
Posted 11 October 2005 - 11:07 PM
|QUOTE (Sig @ Oct 11 2005, 08:11 PM)|
| Form 5's are a waste of time in my opinion.|
Under the ATF own FAQ section they specifically say "suggested", not "required.
Frankly why would anyone want to submit a form that they only say is suggested?
FORM FUCKING FIVES ARE NOT NEEDED FOR REPAIRS.
END OF TOPIC.
Posted 12 October 2005 - 12:07 AM
Uh, huh, exactly. That power resides with the Congress. Oooops, yeah, that's the little part that always gets in the way of these great internet discusssions....the Facts.
Which is why I continue to remind prudent individuals that when a problem develops anywhere along the line, it will not be the BATFE who will be prosecuting, as neither do they have Prosecutorial powers, they only can recommend to the USAGO for prosecution, it will be the US Attorney who will do the duty. BATFE, despite any internet-rumour-legend-wisdoms to the contrary, cannot alter the Congressional legislation passed. While they may have indicated to the USAG that they are "disinterested" in recommending a particular course of action, vis-a-vis Forms 5, the US Attorney is free to file charges on their own volition, and HAS, based solely upon the Law passed by Congress.
So sure, BATFE says you don't need to file Forms 5, I agree, but that's NOT what the Law says!! BATFE isn't going to prosecute you, they CAN'T, the US ATTORNEY DOES, and they are bound only by what is written in the relavent Act(s). So where's the weak link in this problem???? Prudent individuals will take the safest course of action here.
Of course, that's just the information we get for spending $30,000-$50,000.00/YR in legal bills to have these kinds of legal opinions rendered tor us by one of the most prominent firearms industry Law firms; Us trying to stay within the bounds of the Law, and all.......
Guess we could save all that money and just get better legal advice on the Internet, Maybe??? ;-) LOL......
It's really all a matter of prudency and common sense....if you can avoid ALL problems by taking 3 minutes to fill out a damn form, why would ANYBODY expose themselves to ANY potential problems by not doing so???
Posted 12 October 2005 - 01:25 AM
How about this then?
Form 5's are recommended by ATF but not required for temporary transfers to qualified individuals for repair .
Posted 12 October 2005 - 09:15 AM
Posted 12 October 2005 - 10:03 AM
If you did not do a Form 5, there is no conceivable (legal) way the Thompson can be sold to another person. BATF will not ever approve a transfer to a new owner where the transferee is not listed in the NFRTR as the possessor. So, your odds of recovering your property in this situation: pretty good.
If you did a Form 5, the NFRTR now reflects that the repair shop is the registree for the firearm. Yes, I know a Form 5 is a temporary registration and the shop should not be able to transfer the registration on a 3/4 to another person, but it's not unlikely that this could happen in practice. If it does, that transfer to the buyer is legal under the NFA so forget having ATF interceded on your behalf. Then, to top things off, UCC 2-403 passes good title under state law to the buyer of the Thompson. So there is no way to recover your Thompson, ever, even if you bring all the lawsuits in the world.
'Nuff said. You don't need a Form 5, and if you don't understand or care about the legal risks, that's your loss.
Posted 12 October 2005 - 12:29 PM
The Form 5 is a dual-use form. That is why it is used for "tax exempt transfer and registration" , and for "temporary registration" in the SPECIFIC instance of "repair". ATF never envisioned anything more than two possible scenarios when devising the Forms, Tax PAID transfers, and Tax EXEMPT transfers. The Form 5 was the last form promulgated, and was a "catch-all" form to cover as many possibilities as they envisoned for Tax EXEMPT activity. That is why they SPECIFICALLY REQUIRE you to annotate the Form as filed to indicate if it is for "repair" purposes, as opposed to a "normal" filing as merely a Tax exempt event that becomes a permanent alteration of the NFRTR records.
That is probably where most people have trouble understanding the mixed-use status of the Form 5, in that they do not understand how NFA Branch treats the filing of both cases of the Form much differently. When you file a Form 5 to affect transfer and registration for a purchase of a gun from, say, an LE Agency (an Exempt Entity under NFA'34), they PERMANENTLY affect a Registration change in the NFRTR to the new Registrant. Since you did NOT indicate that the filing was for a legitimate "Repair" activity......they CLOSE THE BOOK on that record change with that filing. If you DO indicate the "repair" nature of the requested filing and subsequent TEMPORARY registration change they LEAVE THE RECORDS AS THEY WERE in the NFRTR with only an ANNOTATION indicating the TEMPORARY change. That's the difference and is WHY you should indicate the "Repair" qualification when filing as it leaves you as the original listed Registrant in the NFRTR.
I think many folks have actually little understanding of the actual path these Forms travel within NFA Branch. "Back in the Day", when there were only the three sweet little old Ladies working there, annotating everything on note cards.....they used to just paperclip the temporary listing onto the filing docket. It was THAT simple! Now, they simply annotate the data files.....but point being that if YOU indicate it is a temporary change by filing under "repair", they will maintain the original Registrant status. The only way they have to know if it should be a permanent or temporary change is how YOU file the forms!!
In actuality.....there should probably be TWO distinct "Tax Exempt" forms; One for "normal" filings of permanent transfer and change of registration, such as for a purchase, and then one SPECIFICALLY used for the temporary nature of "repair" activity. If you view the use of the Forms 5 in that light, it all becomes much clearer.
And since it was raised, desite the (innaccurate) presumption of any "State Law" being overriding in the instant case where a maltransaction occurs and tangible property is negligently conveyed by deceit, or mistake, the proper filing of the Form 5 will most assuredly protect the actual NFA device involved from improper registration to an interested third-party. When ATF discovers the error in approving such a transfer, they will rescind the Approval and the gun WILL BE returned by you (Courtesy of the US Marshall Service, actually. Kinda fun to watch THAT go down....). So you get your gun back, end of story. At that point everybody is only arguing over money, but the gun goes back to you. I know of NO State Court that would NOT follow the recomendation of US Attorney in this scenario, excusing the original Owner from any liability in recovering, restoring, and remanding full "title" interests, as the primary Injured Party.
One last point, If I may indulge, on the difference between "Law" and "Regulation" with BATFE, since it is of primary importance here. What we are talking about here is almost a uniquely interesting situation. Very few other GOV agencies are in similar situations, the EPA may be the best example as they too are bound by Congressional Acts (The Clean Water Act, for example), yet are authorized to promulgate Regulatory memorandums, which sometimes DO have the effect of Law.
Take the most simple example: When the Congress passes an Act, let's use either the NFA '34 or GCA '68 (as amended via FOPA/McCLure-Volkmer '86), BATFE is directed to enforce the will of Congress, with no ability to alter or ammend the langauge (via Agency interpretations therein). Of course.....they do though, in actual practice, do a lot of INTERPRETING, for many reasons, and not all bad. (A good example is the "interpretation" that allowed the Industry accomodation for the "Post-86 MG Demo Letter".) The simple issue for *US* is that Congress passed legislation with the NFA '34(ammended) that DIRECTED specific activities for the Transfer of these Title II weapons and devices.......but they left it up to the REGULATORY AGENCIES INVOLVED (as they always do) as to how to accomplish those directives....so you get "interpretations" from BATFE all the time. Which is fine so long as you are only dealing with BATFE....the problems arise when the conduct being examined falls outside the, litterally speaking, jurisdiction of BATFE. There have been well known Federal cases where ATF has filed amicus-curae briefs with the Courts on behalf of Defendants saying in effect, "We (ATF) don't have a problem with what this Guy is doing", but the US Attorney then says "..too bad, I do.." and the prosecution continues because the language of the Act(s), passed as Law by Congress doesn't actually say something that one of these "Regulatory Interpretations" indicated. It's one of the nice things about working in the USAGO, you don't HAVE to try and figure out ANYTHING, it's all written down in black in white. It's part of the maze.......
An Agency does not have, as you suggest "by consent" of Congress, their approval or disapproval merely by notion that Congress has done nothing to ammend old Legislation, or failed to enact new. This is one of the HUGE dangers in deciphering Constitutioanl Law, expecting the Congress to be paying attention to every single thing that every Federal Agency is doing at all times. In reality, the better path to tread is the recognized legal notion of "the Law speaks for itself" (Latin ommitted) and ALWYS assume Congress knew what it was doing in enacting specific Legislation and meant what it said. Congress is a huge, slow moving, monolithic beast, and it takes a especially egregious act to get it to go back and revisit an old issue once thought settled. The fact that BATFE is forced to deal with a paltry few registered machineguns is not something Congress has any interest in revisiting, on the whole.
Which I only mention in the light of what I see is far too much current reliance on the notion and concept of these "ATF Letters". One needs to remember that ANY such clarification Letter is ONLY VALID to the specific addressee named therein, and at MOST, will only have a redactable effect on conduct by that ONE named individual, should a later "misunderstanding" arise between him and the USAG. Since the whole notion of Forms 5 FOR REPAIR PURPOSES by BATFE NFA Branch now are being "suggested ONLY", I can only reiterate that while NFA Branch has tactitly acknowledged (for their own internal purposes, no doubt) that filings of such are "suggested", the actual governing law states other wise.
Posted 12 October 2005 - 02:12 PM
It's not clear an improperly granted transfer can even be rescinded by ATF (with the exception of a post-86 gun, but that's a separate topic). That's because it's the act of transferance, not possession, that is regulated under the auspices of the NFA. 26 USC § 5861 clearly states that, "It shall be unlawful for any person — ( to receive or possess a firearm transferred to him in violation of the provisions of this chapter". 26 USC 5812 sets forth the elements of what is required for transfer, the most relevant of which is (6) -- "the application form shows that the Secretary has approved the transfer and the registration of the firearm to the transferee. " If the transfer is completed under a valid but erroneous approval, the requirements of subsection (6) have still been met, meaning the transfer was legal when made. Ergo, if the transfer was valid (but erroneously approved), there is no violation of 5861( and no violation of the NFA which could serve as the basis for a recission of approval and recovery of the firearm.
Absent a violation of the NFA which causes the government to recover your firearm for you, the determination as to title then becomes wholly an issue of state law with no federal element. That is discussed in my post above.
As I said, in light of the above, you would be foolish to rely on ATF's internal paperwork hhandling procedures as prevention against an erroneous outbound transfer. Not filing the Form 5 is the safest alternative. Choose to do disregard this risk at your own peril.
Lastly, it would never be the U.S. Marshalls service that would recover your property. They have no involvement with these matters. It would either be ATFE, local law enforcement, the FBI if requested by ATFE to assist or some combination of all of the above.
Your point as to whether ATF has the authority to not require the filing of a Form 5 has validity. However, it's highly unlikely that any person could be successfully prosecuted for a failure to file a Form 5 where the administrative agency charged with interpretation of the regulations has given explicit written permission to take the action take. In addition, ATF has potential bases of support for its position under the definition of transfer in 5845.
Posted 12 October 2005 - 06:26 PM
|QUOTE (John Jr @ Oct 11 2005, 10:07 PM)|
FORM FUCKING FIVES ARE NOT NEEDED FOR REPAIRS.
END OF TOPIC.
Posted 12 October 2005 - 08:14 PM
I will continue to the heed the expensive advice and legal direction we pay handsomely for from our Washington attorneys, you are free to travel your own path. ;-) With a multimillion-dollar-yearly venture at stake, I cannot do any less. We operate as we do due to effective interaction with many Branches of BATFE, not just NFA Branch, and the longterm relationships we have established are based upon us following this strict advice, so I gotta be honest and say, "I disagree with you, too......". I guess you could say it's all a matter of "comfort", if you have a comfort zone there, well, fine and dandy. As a direct result of the advice we pay dearly for, I don't, and we have far too much at stake to do otherwise. Back at Ya.......no harm done.
On the US Marshall's Service comment: I was neither speculating, nor hypothesizing. As I said, it's fun to watch one of these events go down. Marshall's are indeed thus employed. They're jurisdictionally uniform, and often times employed as a result to AVOID engagement of other FLEA's for many valid reasons. Heck though....what do I know...... ;-)
On the other stuff....I think you're not reading what I wrote. An "approved" transfer that can be shown to have been improperly filed and colored by fraud, deceit, theft, manipulation, or other illicit or criminal acts will ALWAYS be voided and remanded at discovery. That's what the original question about Gunsmiths going under, etc., was about. It's the act of legitimate, i.e.,-non-fraudulent, APPLICATION that carries Legal standing, not the APPROVAL of the (filed) application. NFA Branch "approves" things all the time, it doesn't mean what you think. "Approved" transfers are voided all the time for just such things. Look at this in terms of something different, like auto theft, where there's a filing of title required to convey (lawful) ownership. I can't just steal your car and then claim you conveyed title because I forged your siganture on the back of a (State title) document (which you left in the car for me to find)! Same thing when you argue the "dangers" of filing a Form 5, followed by a fraudulent APPLICATION....it is fraudulent in all cases where YOU did not file the application as the original Registrant. Why it becomes a Federal question is because of the (uniquely overriding) Federal requirements of the NFA Act; if a fraudulent transfer is approved and possession change affected based upon that approval, it will not stand a lawful challenge....."State Law" is essentially the wrong argument to raise until the Federal interests are discharged. You ignored my point: what we BEGAN this little chat over WAS a (possible) violation of the NFA (and other firearms violation enhancements).
We've had several instances where as a MFGR of NFA devices we've been stiffed by deadbeat customers, when we get no joy from the collection agencies.....we IMMEDIATELY file in Fed Courts for, among other things, theft (illicit conveyance of title based upon fraudulent intentions), and express violations of the NFA. Guess who backs us up on the "fraudulent transfer approvals"....ATF. And guess who goes and knocks on the doors??? (HINT-Tommy Lee Jones played one in a couple bad movies)
But your absolutely correct, it's the act of transference that's the issue. And without a (valid, lawful) transfer (both in the NFA terms, and Common Law definition), "possession" (or, "title") is NOT lawfully conveyed, which is the point at which State Law (may) become operative.(Remember me stealing your car example)
If you doubt any part of that.....please email me the complete data from a few of your Forms 4, and I will "Transfer" to my FFL all of "my new guns", I can call NFA Branch in the morning and call in a favor and most likely get the "transfers" approved right away even (yawwwnnnnn..........)! ;-) ;-)
And John Jr.....Relax Guy, take a chill pill! Life's too short! This is just for fun, so unwrap yourself a little.....expand and enjoy. ;-) Don't get so uptight.
Posted 12 October 2005 - 09:12 PM
Perhaps he will unseat you
Posted 12 October 2005 - 10:00 PM
The other question is how long does a form 5 take and is there a transfer tax?
Posted 12 October 2005 - 10:34 PM