Question about firearms purchase and legality - Straw Man Sale?

I don't know if this can be done, but what if the son gives the father a power of attorney to act as the son's agent for the purchase of the gun and to execute documents related to the purchase. The purchaser of the gun is the son, but the father signs the father's name on behalf of the son. The dealers report of sale lists the son's date of birth and permanent state of residence recorded in the son's military file.

The lay away idea others suggested may be best.
 
Dreaming100Straight said:
I don't know if this can be done, but what if the son gives the father a power of attorney to act as the son's agent for the purchase of the gun and to execute documents related to the purchase....
No, it can't be done. See post 11. Furthermore, under those facts the father would not be the actual purchaser of the gun. The actual purchaser would be the attorney-in-fact's, i. e. father's, principal, i. e., the son. So the father could not claim on the 4473 to be the actual purchaser.

That was effectively the Abramski situation, and indeed is the general "straw purchase" issue, one person buying the gun as the agent of another but falosly claiming to be the actual purchaser. The real problem flows from the agent-principal relationship; and it's the same whether documented with a power of attorney or merely arising from the understanding of the parties.

An agent-principal relationship exists without a power of attorney. A power of attorney may be required for certain highly sensitive or significant transactions to assure that the agent's bona fides and his scope of authority is properly document, thus verifying and assuring that the transaction is within the power of the attorney-in-fact.
 
Post #11 was in response to my question about the purchaser having to be physically present. In Franks response quote, there does appear to be a procedure for not being physically present but it appears to be a hoop that nobody wants to jump through.
 
Frank, The crime in Abramski was making false statements (Nephew falsely stated that he was the purchaser and listed his address and DOB, when the he should have entered the info for the true purchaser. In my scenario, the name, address, and dob entered are all that of the true purchaser, Kimio. Step Father would sign something like "Kimio by Step Father". There is NO false statement involved. Whether a dealer will do the deal I don't know, but I just don't see any false statement or representation. I am guessing that the primary sticking point would be if the FFL can deliver a firearm to the agent of the purchaser/transferee.
 
Last edited:
I won a gun in a raffle. The manufacturer sent the gun to the dealer. I sold the gun to someone else without taking delivery and he picked it up at the dealer and filled out the paperwork as the owner and passed the NICS check. All perfectly legal, (I hope) Done deal.
 
Dreaming100Straight said:
Frank, The crime in Abramski was making false statements (Nephew falsely stated that he was the purchaser and listed his address and DOB, when the he should have entered the info for the true purchaser. In my scenario, the name, address, and dob entered are all that of the true purchaser, Kimio. Step Father would sign something like "Kimio by Step Father"....
What are you taking about? Apparently you haven't been reading my posts and clearly you haven't done any of your own research.

See post 11 and 18 USC 922(c). Unless a very specific procedure is followed, a dealer is prohibited from transferring a gun unless the transferee is physically present at the dealer's licensed premises. If Kimo, the actual buyer, isn't physically there, the dealer can's sell the gun to him.
 
Dreaming100Straight said:
....I am guessing that the primary sticking point would be if the FFL can deliver a firearm to the agent of the purchaser/transferee.
So no, a dealer may not lawfully deliver a gun to an agent of the purchaser/transferee. Again, see 18 USC 922(c).
 
I really need to do my own research. Somehow I got the idea that when a firearm is sold to a corporation the 4473 is completed by an authorized person to whom it is legally delivered. It sure sounds to me as though the authorized person is an "agent" of the actual purchaser.
 
Dreaming brings up an interesting point. What about firearms purchased by corporations? For instance, private security companies.
 
Legally, the corporation is a person, with the same rights. The gun would be corporate property. You don't get to claim ownership of it, or buy it from the corporation, without another FFL transfer taking place.

I think you need to be on official corporate business to be in possession of the gun. It's not a legal fiction that lets you buy stuff through a third party and appropriate it for your personal use.
 
Dreaming100Straight said:
I really need to do my own research. Somehow I got the idea that when a firearm is sold to a corporation the 4473 is completed by an authorized person to whom it is legally delivered.....
Yes, you really need to start doing your own research. You also need to back up your opinions with something more robust than, "...Somehow I got the idea...."

What would be appropriate would be for you to (1) cite the law that applies to a corporation buying a firearm; (2) provide some documentation of an actual case of a corporation buying a firearm; and (3) describe, based on actual and documented examples, the procedures applicable to a corporation buying a firearm.

In any case 18 USC 922(c) says what it says. And here's what ATF says about a power of attorney:
May an ATF Form 4473 be completed for the transfer of a firearm by a person holding a Power of Attorney?

No. A licensee is required to obtain an ATF Form 4473 from the transferee who must certify that he or she is not prohibited from receiving or possessing a firearm, and whose identity the licensee must verify prior to transfer. A licensee cannot comply with these provisions where a Form 4473 is completed by a person other than the actual transferee....

Furthermore, matters related to the purchasing of a firearm by a corporation are irrelevant. The OP is not a corporation.
 
FWIW, I recently consulted an attorney about converting from a simple will to a living trust (which, I believe, is a "legal entity" somewhat analogous to a corporation). When I mentioned that I own a few firearms, the attorney consulted with his associate, who is an active gun rights person, and they came back with the news that every firearm transferred from me to a trust (if I create one) is a separate transfer and must go through an FFL. They recommended that I not transfer the guns.
 
Aguila Blanca said:
...a living trust (which, I believe, is a "legal entity" somewhat analogous to a corporation)...
Actually, a trust in not a legal entity. A trust does not own anything. People might talk in casual terms about a trust owning something or having assets, but that's only a shorthand for the more detailed, technical reality.

It's kind of like the old "I say clip, but you know I mean magazine" discussion. If one lawyer talks to another about the assets of a trust, they both know that what is really meant is the property owned by the trustee in trust. But to someone without the background to understand the shorthand, it appears that there is some legal entity called a "trust" which owns certain property. That illustrates how a casual misuse of terms can lead to a serious misunderstanding. As the Chinese say, "The first step toward wisdom is calling things by their right names."

The legal reality is that the trustee (a person -- natural or artificial (a corporation) as the case may be) holds (owns) the assets in trust, subject to the terms of the trust document, for the benefit of one or more beneficiaries. Let's look at some definitions of "trust":

  1. The Free Dictionary:
    Trust

    A relationship created at the direction of an individual, in which one or more persons hold the individual's property subject to certain duties to use and protect it for the benefit of others.

    Individuals may control the distribution of their property during their lives or after their deaths through the use of a trust. There are many types of trusts and many purposes for their creation. A trust may be created for the financial benefit of the person creating the trust, a surviving spouse or minor children, or a charitable purpose. Though a variety of trusts are permitted by law, trust arrangements that are attempts to evade creditors or lawful responsibilities will be declared void by the courts.

    The law of trusts is voluminous and often complicated, but generally it is concerned with whether a trust has been created, whether it is a public or private trust, whether it is legal, and whether the trustee has lawfully managed the trust and trust property.

    Basic Concepts

    The person who creates the trust is the settlor. The person who holds the property for another's benefit is the trustee. The person who is benefited by the trust is the beneficiary, or cestui que trust. The property that comprises the trust is the trust res, corpus, principal, or subject matter. For example, a parent signs over certain stock to a bank to manage for a child, with instructions to give the dividend checks to him each year until he becomes 21 years of age, at which time he is to receive all the stock. The parent is the settlor, the bank is the trustee, the stock is the trust res, and the child is the beneficiary.

    A fiduciary relationship exists in the law of trusts whenever the settlor relies on the trustee and places special confidence in her. The trustee must act in Good Faith with strict honesty and due regard to protect and serve the interests of the beneficiaries. The trustee also has a fiduciary relationship with the beneficiaries of the trust.

    A trustee takes legal title to the trust res, which means that the trustee's interest in the property appears to be one of complete ownership and possession, but the trustee does not have the right to receive any benefits from the property. The right to benefit from the property, known as equitable title, belongs to the beneficiary.

    The terms of the trust are the duties and powers of the trustee and the rights of the beneficiary conferred by the settlor when he created the trust....

  2. The Law Dictionary:
    ...An equitable or beneficial right or title to land or other property, held for the beneficiary by another person, in whom resides the legal title or ownership, recognized and enforced by courts of chancery. See Goodwin v. McMinn, 193 Pa. 046, 44 Atl. 1094, 74 Am. St. Rep. 703; Beers v. Lyon, 21 Conn. 613; Seymour v. Freer, 8 Wall. 202, 19 L. Ed. 300. An obligation arising out of a confidence reposed in the trustee or representative, who has the legal title to property conveyed to him, that he will faithfully apply the property according to the confidence reposed, or, in other words, according to the wishes of the grantor of the trust. 4 Kent Comm. 304; Willis, Trustees, 2; Beers v. Lyon, 21 Conn. 613; Thornburg v. Buck, 13 Ind. App. 446, 41 N. E. 85....

  3. Nolo Press:
    ...A trust is an arrangement under which one person, called a trustee, holds legal title to property for another person, called a beneficiary. You can be the trustee of your own living trust, keeping full control over all property held in trust....

  4. Wikipedia:
    In common law legal systems, a trust is a relationship whereby property is held by one party for the benefit of another. A trust is created by a settlor, who transfers some or all of his or her property to a trustee. The trustee holds that property for the trust's beneficiaries. Trusts have existed since Roman times and have become one of the most important innovations in property law....
 
Frank, if I understand this at all correctly (which appears increasingly unlikely), if a person creates a living trust with himself as the trustee, in order to have his property in the trust he is transferring said property from himself as an individual TO himself as trustee -- for himself?

Small wonder I'm confused.

Is the lawyer correct that personally owned firearms would be subject to transfer laws if brought into a living trust?
 
Aguila Blanca said:
...if a person creates a living trust with himself as the trustee, in order to have his property in the trust he is transferring said property from himself as an individual TO himself as trustee -- for himself?...
Pretty much. The property is transferred from Aguila Blanca to Aguila Blanca as trustee of the AB Family Trust, or something like that.

A primary purpose of a living trust is to avoid probate. But whether it's a good idea for someone and exactly how it should be set up involves a lot of personal details beyond the scope of this discussion.

This looks like a pretty decent "bird's eye view."
 
Frank Ettin:

Take a look at page 14 of the ATF Federal Firearms Licensee
Quick Reference and Best Practices Guide
for an example where the ATF doesn't permit, it directs the dealer to have a business entity's authorized representative complete the 4473 with his or her personal information, when gun is for the use of and it becomes the property of the entity.

The authorized person purchasing the firearm on behalf of the corporation must complete the Form 4473, with his/her personal information and undergo a NICS check.

Have you read the instructions for question 1, transferee's full name, found on page 3 a 4473? Where the buyer is a business entity, it specifically instructs the authorized agent to complete the form with his name and info, and to attach a written statement, under penalty of perjury, about the entity, whether a corporation, company, partnership, or association, that the firearm is being acquired for its use and is its property, and providing the entity's name and address.

Are you still as positive that the actual buyer has to complete the 4473?

On another note, you are correct that a trust is not an entity. Edit: Whether or not is is a "legal entity", see this and read the part about BATF's definition of an individual as including a trust". I have no opinion as to whether or not the article is correct or not. It would be interesting to know whether BATF defines what is a trust.

To begin with, one must understand what a transfer of a NFA firearm entails and which registration entity best suits his/her client. The Bureau of Alcohol, Tobacco, Firearms and Explosives currently allows the registration of NFA firearms, by an individual, which is defined as A partnership, company, association, trust, estate, or corporation, as well as a natural person.1 The correct entity will depend on the clients current and future desires.
 
Last edited:
Dreaming100Straigh said:
Frank Ettin:

Take a look at page 14 of the ATF Federal Firearms Licensee
Quick Reference and Best Practices Guide
for an example where the ATF doesn't permit, it directs the dealer to have a business entity's authorized representative complete the 4473 with his or her personal information, when gun is for the use of and it becomes the property of the entity.

The authorized person purchasing the firearm on behalf of the corporation must complete the Form 4473, with his/her personal information and undergo a NICS check.

Have you read the instructions for question 1, transferee's full name, found on page 3 a 4473? Where the buyer is a business entity, it specifically instructs the authorized agent to complete the form with his name and info, and to attach a written statement, under penalty of perjury, about the entity, whether a corporation, company, partnership, or association, that the firearm is being acquired for its use and is its property, and providing the entity's name and address.

Are you still as positive that the actual buyer has to complete the 4473?
...
Well at least you finally did some research.

Nonetheless, the only exception you've found applied specifically to a business entity. So 18 USC 922(c) is still there and says what it say. Furthermore, the ATF has said in its FAQs that a power of attorney won't work.

Finally, the OP is not a business entity, so the question of purchase of a gun by a business entity is irrelevant.
 
Aguila Blanca: I have wondered whether it is true that one needs to transfer ownership of a firearm and use an FFL in order that it be held in trust. I believe that depending on the laws of a particular jurisdiction and the assets subject to the terms of the trust, it need not be in writing, but it is a damn good idea that it is written whether or not it is required. Do not consider this to be legal advice. There may be some good reason unique to firearms law for transferring ownership to oneself of which I am not aware.
 
Whatever you say, Frank Ettin. I read the instructions to the 4473 long ago and am surprised you weren't aware of what it said about authorized representatives of a business entity. That the authorized representatives of a business entity must complete the 4473 demonstrates that the Q&A to which you linked to be incorrect. As written the Q&A applies to all "transferees" while the 4473 demonstrates it does not. I am tired of tilting at this windmill.
 
Back
Top