Could This Be Considered a Straw Purchase?

[steve4102]

I’m about to purchase another AR-15.

I have all the necessary permits and will going through my FFL.

The issue is, I want to use my son’s Credit Card to make the online purchase.

Everything will be in my name except the CC, is this considered a Straw?

 

[MC 1911]

Never know what they think anymore. I would say no as long as it's shipped to your FFL in your name & you do the paperwork.

 

[zukiphile]

The issue is, I want to use my son’s Credit Card to make the online purchase.

Everything will be in my name except the CC, is this considered a Straw?

For your analysis, separate payment and possession. They aren't the same thing.

If the transfer is to you for your own possession and you've no understanding to transfer it to someone else's possession, then you are not a straw party.

That said, the FFL may not want to let you use a credit card or there may be no way in the vendor's program for it to distinguish a buyer from a transferee. For the seller and FFL, it's easier to keep everything simple. If your FFL refuses to transfer to you because the package came with your son's name on it or in it, it may not matter that this was not a straw sale.

 

[44 AMP]

You might want to get the ATF's opinion on the matter.

There are a couple ways to look at it, and I have no clue which way they lean.

If its your money, and you are just using his card to facilitate the purchase, then you are the purchaser, HOWEVER, they could easily take the view that since it is his card that is paying, HE is the actual purchaser, NOT you.

Your son isn't a prohibited person, right?? That would really complicate matters if he was.

Gun laws are tricksy, and don't always follow common sense rules, It might be best to simply have your son buy it and legally gift it to you. Buying a gun as a gift for some one who can legally possess it is allowed, but you have to fill out the forms the right way, or you could be committing a technical crime.

Bounce the idea off the ATF, if they say don't do it, then don't do it. Also check with the seller and receiving FFLs, even if the ATF allows it, they may not, and, they're not required to accept payment from a "3rd party" source, With most things, it doesn't matter, with firearms, it does.

 

[shortround60]

Simple Solution that I used

I had a similar issue, where I wanted to buy a good friend their dream gun. I bought a gift certificate for the gun and the FFL made the order to get the gun in. Once it arrived, my friend submitted the paperwork and my gift card covered the purchase and transfer fees. All perfectly legal and above board.

 

[steve4102]

No, he is not a prohibited person

 

[Spats McGee]

Straw purchases and prohibited persons are separate issues.

 

[zukiphile]

Straw purchases and prohibited persons are separate issues.

In ATF-land, they are clearly different issues. In normal circumstances a straw purchaser stands in for the true purchaser because the true purchaser has some kind of disability. I can imagine that someone who consults Google, JD could come away thinking that so long as he is purchasing on behalf of a non-prohibited person, he would not have participated in an ATF-straw purchase.

Bounce the idea off the ATF,...

As a rule of thumb, one's life does not get better by talking to a PO with a ticket book in his hand, any part of IRS, or any federal regulator.

It might be best to simply have your son buy it and legally gift it to you.

That could be construed as an ATF-straw transfer. It's the prior agreement to transfer to another person that would make the son not the true purchaser/transferee.

 

[Spats McGee]

In ATF-land, they are clearly different issues. In normal circumstances a straw purchaser stands in for the true purchaser because the true purchaser has some kind of disability. I can imagine that someone who consults Google, JD could come away thinking that so long as he is purchasing on behalf of a non-prohibited person, he would not have participated in an ATF-straw purchase...

All true, but that's why I made the correction. If someone wants to go to Google U for their JD, that's their business. But if they come to TFL School of Law, we give them accurate information!

 

[44 AMP]

That could be construed as an ATF-straw transfer. It's the prior agreement to transfer to another person that would make the son not the true purchaser/transferee.

That seems like more than a bit of a reach, to me, but such things can, and have happened, I'm sure.

Unless something I'm not aware of has changed, one can legally purchase a gun as a gift, and you ARE the legal purchaser. You declare it is being purchased as a gift on the paperwork, and there is a spot for that (or there used to be...)

I can see them making the argument that it is a strawman purchase, IF you don't declare it is being purchased as a gift, but if you do declare it is to be a gift, I don't see how the strawman argument can stand up.

 

[dogtown tom]

steve4102

Everything will be in my name except the CC, is this considered a Straw?

<---FFL

A straw sale occurs when the person acquiring the firearm from a licensed dealer is not the actual buyer/transferee as listed on the Form 4473. The crime occurs when someone other than the actual buyer completes and signs the 4473.

An increasing number of online sellers are including warnings to the receiving dealer to "Transfer only to person named on the invoice!!!".

This is due to the ENGLUND V. J&G SALES & WORLD PAWN EXCHANGE lawsuit in 2016. In short, the actual buyer ordered the firearm online from J&G, the person supplying the credit card (mom) was listed on the invoice. She went to World Pawn to receive the transfer. She then gave the gun to her son who later committed a murder. Of note is that ATF regs and federal law allow for a bonafide gift. Neither World Pawn or J&G violated any ATF regulation.

You can avoid trouble by asking your receiving dealer how HE WANTS to proceed. If you don't, and he opens the box, sees an invoice for "Steve Jr"......he will rightfully be upset when "Steve" shows up to fill out the 4473/NICS.

 

[dogtown tom]

zukiphile
That said, the FFL may not want to let you use a credit card or there may be no way in the vendor's program for it to distinguish a buyer from a transferee. For the seller and FFL, it's easier to keep everything simple. If your FFL refuses to transfer to you because the package came with your son's name on it or in it, it may not matter that this was not a straw sale.

True.

Originally Posted by 44 AMP
Bounce the idea off the ATF,...

Never. Verbal advice from ATF is worth the paper its printed on.
ATF has made it clear what constitutes a "straw purchase".

Originally Posted by 44 AMP
It might be best to simply have your son buy it and legally gift it to you.

A "gift" must be a bona fide gift. Giving your son $$$, having him use his credit card, son completes the 4473/NICS then hands the gun to dad? That a felony.

Originally Posted by zukiphile
..... In normal circumstances a straw purchaser stands in for the true purchaser because the true purchaser has some kind of disability.

A straw sale does not require a prohibited person. When someone who is not the actual buyer/transferee completes the 4473/NICS....its a straw sale. The sole exception is when the purchase is for a bonafide gift.

 

[dogtown tom]

44 AMP
Unless something I'm not aware of has changed, one can legally purchase a gun as a gift, and you ARE the legal purchaser.

Correct. Thats covered in the instructions on the Form 4473.

You declare it is being purchased as a gift on the paperwork, and there is a spot for that (or there used to be...)

I've never anything like that. It most certainly hasn't been on any Form 4473 in the last twenty five years.

I can see them making the argument that it is a strawman purchase, IF you don't declare it is being purchased as a gift, but if you do declare it is to be a gift, I don't see how the strawman argument can stand up.

A bona fide gift is not a straw purchase.
There is no "declare it to be a gift". Again, purchasing a firearm you intend to give as a gift makes YOU the actual buyer/transferee. It says so in the instructions. You answer yes to "Are you the actual transferee/buyer of all of the firearm(s) listed on this form and any continuation sheet(s) (ATF Form 5300.9A)?"

Pretending you are buying the gun for yourself, then casually mentioning to the dealer that its not really for you....thats called being an idiot and should get you kicked out of the store. Dealers are constantly reminded about the possibility of a straw sale and such comments are red flags.

If you are buying the firearm as a bonafde gift.....make that clear right off the bat.

 

[zukiphile]

In ATF-land, they are clearly different issues. In normal circumstances a straw purchaser stands in for the true purchaser because the true purchaser has some kind of disability. I can imagine that someone who consults Google, JD could come away thinking that so long as he is purchasing on behalf of a non-prohibited person, he would not have participated in an ATF-straw purchase...

A straw sale does not require a prohibited person. When someone who is not the actual buyer/transferee completes the 4473/NICS....its a straw sale. The sole exception is when the purchase is for a bonafide gift.

The general concept of a straw purchaser is an agent who is the nominal buyer because his principal is prohibited from purchasing or is under some kind of disability. Straw purchases aren't limited to firearms. Since Abramski and within the context of FFL transfers, a "straw purchase" is also the term used for any transferee who isn't a true purchaser without respect to any disability of the true purchaser, i.e. the principal. This is specific to this kind of transfer.

In Abramski, the agent who filled out the 4473 falsely claimed that he was the true purchaser and the majority found that this misrepresentation was material even where the principal isn't a prohibited person. Abramski turns on the materiality of the misrepresentation, rather than the general concept of a straw purchaser.

ATF has a true purchaser rule that has been upheld. Misrepresenting what you are on a 4473 to save a couple of dollars is a false economy.

 

[JohnKSa]

The general concept of a straw purchaser is an agent who is the nominal buyer because his principal is prohibited from purchasing.

That's almost certainly the reason the law was passed, but the way the law is written, there is no need for a prohibited person to be involved for a straw purchase to have occurred.

That causes a lot of confusion because many people assume that the reason for the law's passage is what that matters. Unfortunately, that's just not true. There have been cases (as you note) where the courts have enforced the law, as written and held that a straw purchase occurred even though no prohibited persons were involved.

 

[zukiphile]

The general concept of a straw purchaser is an agent who is the nominal buyer because his principal is prohibited from purchasing.

That's almost certainly the reason the law was passed, but the way the law is written, there is no need for a prohibited person to be involved for a straw purchase to have occurred.

If you mean the way the code is written, that is far from clear. Abramski was an innovation. As Scalia wrote in the dissent,

Under §922(a)(6), it is a crime to make a “false . . . statement” to a licensed gun dealer about a “fact material to the lawfulness of” a firearms sale. Abramski made a false statement when he claimed to be the gun’s “actual transferee/buyer” as Form 4473 defined that term. But that false statement was not “material to the lawfulness of the sale” since the truth—that Abramski was buying the gun for his uncle with his uncle’s money—would not have made the sale unlawful.

It has been the ATF's position in the past that it isn't violation of law for an FFL to transfer a firearm to a straw purchaser so long as the true purchaser isn't a prohibited person.

A few years later, ATF modified its position and asserted that the Act did not “prohibit a dealer from making a sale to a person who is actually purchasing the firearm for another person” unless the other person was “prohibited from receiving or possessing a firearm,” in which case the dealer could be guilty of “unlawfully aiding the prohibited person’s own violation.” ATF, Industry Circular 79–10 (1979), in (Your Guide To) Federal Firearms Regulation 1988–89 (1988), p. 78. The agency appears not to have adopted its current position until the early 1990’s. See United States v. Polk, 118 F. 3d 286, 295, n. 7 (CA5 1997).

There have been cases (as you note) where the courts have enforced the law, as written and held that a straw purchase occurred even though no prohibited persons were involved.

That is the current law as found by the Sup Ct in Abramski in 2014. The bottom line for the OP or any other putative transferee is that misrepresenting anything about oneself on the 4473 is a bad idea. If I liked my FFL and wanted to do future business with him, I would avoid asking him to do anything that didn't look straight over the plate correct during an audit.

I don't know how confusing people actually find this. The post Abramski "true purchaser" rule has fewer analytical steps than the general agency law and the older ATF position.

 

[mgulino]

Can OP’s original dilemma be resolved by becoming an authorized buyer on the son’s credit card?

 

[mehavey]

A man purchases a firearm
-- for himself
after filling out the 4473
-- for himself
and takes possession of the firearm
-- for himself.

That he used someone else's money to do it seems irrelevant.
(n'est-ce pas ?)

 

[Aguila Blanca]

The general concept of a straw purchaser is an agent who is the nominal buyer because his principal is prohibited from purchasing.

No. That is the common MISperception of a straw purchase. A straw purchase is when one person buys a firearm on behalf of another person, not as a bona fide gift.

As Dogtown Tom wrote, the actual purchaser does not have to be a prohibited person in order for a sale to be a straw purcase.

 

[zukiphile]

The general concept of a straw purchaser is an agent who is the nominal buyer because his principal is prohibited from purchasing.

No. That is the common MISperception of a straw purchase.

Emphasis added.

It isn't a misperception; the general concept comes from the law of principal and agent. A straw purchase isn't a firearm specific concept.

A straw purchase is when one person buys a firearm on behalf of another person, not as a bona fide gift.

You can tell that while that is the law on firearm transfers currently that hasn't even always been the rule for firearm transfers.

It's a matter of the difference between a general rule and an exception that is the current rule for FFL transfers.

As Dogtown Tom wrote, the actual purchaser does not have to be a prohibited person in order for a sale to be a straw purcase.

That's correct as a statement of the law on FFL transfers post Abramski, but does not reflect the general concept of a straw purchase.

That he used someone else's money to do it seems irrelevant.
(n'est-ce pas ?)

You aren't wrong, but as a practical matter if it makes an FFL uncomfortable, it's still a problem. FFLs don't get a bonus for having an argument and convincing the bureau they were right after all.