Question about firearms purchase and legality - Straw Man Sale?

[JimmyR]

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.

The OP is not a business, but yet you keep coming back to this "business entity." Why?

 

[Frank Ettin]

The OP is not a business, but yet you keep coming back to this "business entity." Why?

Because he's trying to get out of a hole.

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....

This thread is not about business entities buying guns. This thread is about individuals buying guns for personal use.

And the FAQ refers to powers of attorneys, a subject you brought up in post 21. But then when that discussion wasn't going your way you decided to shift gears to discuss business entities -- something entirely irrelevant to this thread.

 

[Dreaming100Straight]

Keep trying to confuse the issue, Frank Ettin. While the OP is natural person and not a business entity, posters were brain storming as to how a firearm could be purchased without the buyer being present and criminal liability for completing Form 4473 with false information. I brought up the possibility of having an agent complete the form with the principal's personal information (name, date of birth, etc.). The agent would sign the actual buyer's name by their agent and then sign their name. You then said that this couldn't be done and what I was considering was the Abramski situation.

It was not. In Abramski the nephew completed the 4473 by falsely stating that he was the actual purchaser, who in fact was his uncle. Their were no false statements in the scenario. I politely addressed that point to you in post #24, in response to which you less politely accused me of not doing my own research. At the same time, you said that a dealer is prohibited from transferring a gun if the actual buyer isn't physically present on the dealer's premises. In another post you a dealer may not deliver to an agent of a transferree/purchaser.

Now that I have established that I have demonstrated that a dealer may not only deliver to an agent and the actual buyer need not be present, it is perfectly clear that you are the one in a hole and you only dig it deeper by playing the "it's not relevant" card. While the ability of a business entity to make a buy via an agent isn't on all fours with the OP's issue, it is indisputably relevant.

Enjoy the season, Frank Ettin.

 

[Frank Ettin]

...While the OP is natural person and not a business entity, posters were brain storming as to how a firearm could be purchased without the buyer being present and criminal liability for completing Form 4473 with false information.....

So your solution is to have the OP incorporate?

...I brought up the possibility of having an agent complete the form with the principal's personal information (name, date of birth, etc.). The agent would sign the actual buyer's name by their agent and then sign their name....

On the other hand, the ATF has said that a power of attorney won't work.

.. At the same time, you said that a dealer is prohibited from transferring a gun if the actual buyer isn't physically present on the dealer's premises. ...

Which is in fact the case by statute, at least unless a very specific procedure is followed. See 18 USC 922(c), emphasis added:

(c) In any case not otherwise prohibited by this chapter, a licensed importer, licensed manufacturer, or licensed dealer may sell a firearm to a person who does not appear in person at the licensee’s business premises (other than another licensed importer, manufacturer, or dealer) only if—

(1) the transferee submits to the transferor a sworn statement in the following form:

“Subject to penalties provided by law, I swear that, in the case of any firearm other than a shotgun or a rifle, I am twenty-one years or more of age, or that, in the case of a shotgun or a rifle, I am eighteen years or more of age; that I am not prohibited by the provisions of chapter 44 of title 18, United States Code, from receiving a firearm in interstate or foreign commerce; and that my receipt of this firearm will not be in violation of any statute of the State and published ordinance applicable to the locality in which I reside. Further, the true title, name, and address of the principal law enforcement officer of the locality to which the firearm will be delivered are ____________

_______________________
Signature _________ Date ____.”​

and containing blank spaces for the attachment of a true copy of any permit or other information required pursuant to such statute or published ordinance;

(2) the transferor has, prior to the shipment or delivery of the firearm, forwarded by registered or certified mail (return receipt requested) a copy of the sworn statement, together with a description of the firearm, in a form prescribed by the Attorney General, to the chief law enforcement officer of the transferee’s place of residence, and has received a return receipt evidencing delivery of the statement or has had the statement returned due to the refusal of the named addressee to accept such letter in accordance with United States Post Office Department regulations; and

(3) the transferor has delayed shipment or delivery for a period of at least seven days following receipt of the notification of the acceptance or refusal of delivery of the statement.​

A copy of the sworn statement and a copy of the notification to the local law enforcement officer, together with evidence of receipt or rejection of that notification shall be retained by the licensee as a part of the records required to be kept under section 923(g).

....Now that I have established that I have demonstrated that a dealer may not only deliver to an agent and the actual buyer need not be present,...

You've done no such thing. You haven't addressed 18 USC 922(c).

....While the ability of a business entity to make a buy via an agent isn't on all fours with the OP's issue, it is indisputably relevant.

How? Since the OP isn't a business entity, he doesn't fall under the ATF instructions to FFLs you cited. And since he is not within those instructions, 18 USC 922(c) unquestionably applies.

 

[Frank Ettin]

...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....

It appears that you have misstated the instructions on the 4473.

The instructions on the version I have (ATF Form 4473 (5300.9) Part I, Revised April 2012 and marked in the upper right hand corner of the first page, OBM No. 1140-0020 ) reads (emphasis added):

...When the buyer of a firearm is a corporation, company, association, partnership or other such business entity, an officer authorized to act on behalf of the business entity must complete section A....

Any employee or even non-employee if authorized may act as an agent of a business entity. An officer of a business entity will have certain responsibilities and accountabilities for the overall management and control of the business. He's not just an agent. He has management authority, responsibility and accountability for the operation of the business. He's one of the people who runs the business.

 

[Dreaming100Straight]

Thank you for all your comments. I have addressed the matters and do not see how furthering this discussion would accomplish anything more than a waste of time.

 

[Frank Ettin]

Thank you for all your comments. I have addressed the matters and do not see how furthering this discussion would accomplish anything more than a waste of time.

Yes, I can see why you would want to withdraw from the discussion. You have no answer to 18 USC 922(c) and you've based you "business entity" argument on a misreading (as I outlined above) of the instructions on the 4473.

 

[Dreaming100Straight]

You got me, Frank, I intentionally typed authorized agent, which an officer of a corporation is to the extent of their actual ostensible authority, instead of officer and then directed you to the where to read the actual language. My bad.

So your solution is to have the OP incorporate?

I make no comment and suggest no solution as to his dilemma.

On the other hand, the ATF has said that a power of attorney won't work.

Firstly, the ATF has been known to say a lot of things that were wrong. Secondly, it isn't at all clear that your Q&A rules out the use of an agent for a purchase. While you correctly pointed out that the 4473 says that an officer must complete the 4473, the instructions don't make sense since they pertain not only to corporations, but to companies, associations, and partnerships. My corporations law may be rusty, but I never heard of an a partnership having an officer. Whether or not a company or an association has an officer would depend on how it was organized. Have you ever heard of a company owned by a single individual?

Which is in fact the case by statute, at least unless a very specific procedure is followed. See 18 USC 922(c), emphasis added:

I shnowed you that 922 (c) is not the only situation in which the actual purchaser need not be present. Do you not agree that an corporate officer is an agent of the corporation?

You've done no such thing. You haven't addressed 18 USC 922(c).

It doesn't appear to that ATF has interpreted it so as not to allow a sale to business entities that do not appear before the dealer.

How? Since the OP isn't a business entity, he doesn't fall under the ATF instructions to FFLs you cited. And since he is not within those instructions, 18 USC 922(c) unquestionably applies.

Cute phrasing; 922(c) applies. By it's wording it would seem controlling, but if it did, a dealer couldn't deliver to an agent for a business entity.

Yes, I can see why you would want to withdraw from the discussion. You have no answer to 18 USC 922(c) and you've based you "business entity" argument on a misreading (as I outlined above) of the instructions on the 4473.

To the contrary. While the 4473 says officer, the ATF guide to which I linked and I quoted says authorized person and some of the listed business entities do not even have officers. Even if they did, an officer is an agent of a corporation.

 

[The Few The Proud]

Jim

Yes that is legal because the party owning the rifle completed an passed the 4473, background check. The person overseas would be in violation of the straw man law if he used his dad to circumvent the system. The transaction would be ok if the dad bought the gun for his son and completed the background check, then when it came time to give the son the gun they went to an FFL an just had him do a transfer and have the son go through the background check and complete the 4473 and pass.

 

[Dreaming100Straight]

Sempre Fi,

The transaction would be ok if the dad bought the gun for his son and completed the background check, then when it came time to give the son the gun they went to an FFL an just had him do a transfer and have the son go through the background check and complete the 4473 and pass.

Do you mean it would be ok if the dad used his own money to buy and make a gift of the gun to his son and the dad completed the background check? If you did, you may want to seek legal counsel. There may be serious problem if you buy "for" the actual purchaser instead of buying a firearm as a gift to make to another non prohibited person. "For" may suggest that you are acting on behalf of another.

 

[Frank Ettin]

...I intentionally typed authorized agent, which an officer of a corporation is to the extent of their actual ostensible authority, instead of officer and then directed you to the where to read the actual language.....

1. Yes, an officer is an agent. But an agent isn't necessarily an officer. An agent might be an officer or someone unconnected with the business except to have been authorized by the business to do something on its behalf, like sell the business' product door-to-door.
   
   
2. What makes the reference to "officer" instead of "agent" significant is that an officer manages and controls the business. That is a broader and more significant authority than that of just any agent.
   
   
3. As someone responsible for the management and control of the business, an officer hires and fires, determines budgets, determines the policies and procedures which apply to the operations of the business, and tells employees what to do, how to do it and what not to do in the conduct of the business. And therefore, the officer who buys the gun on behalf of the business entity can decide what the business entity does with the gun.
   
   
4. So since an agent isn't necessarily an officer and doesn't necessarily have management and control of the business entity, by using the word "agent" where the instructions on the 4473 use the word "officer", you have misrepresented those instructions as applying to a broader class of persons than they do. And the fact that you used "agent" instead of "officer" required that we find a current copy of a 4473 to discover your misrepresentation.

...While you correctly pointed out that the 4473 says that an officer must complete the 4473, the instructions don't make sense since they pertain not only to corporations, but to companies, associations, and partnerships. My corporations law may be rusty, but I never heard of an a partnership having an officer.....

Nonetheless, the instructions do use the word "officer." And I submit that the key distinction is that the person buying the gun on behalf of a business entity must be someone responsible for the management and control of the business entity.

...Have you ever heard of a company owned by a single individual?...

What do you mean by "owned"? A business operated by a single person is a sole proprietorship. It is not a "company" or separate entity. It is the person, the proprietor. The businesses assets are his assets, and all his assets are the assets of the business.

Of course an individual could form a corporation, do business as a corporation and be the sole shareholder. In that case, there would still need to be the statutorily required officers.

I shnowed you that 922 (c) is not the only situation in which the actual purchaser need not be present....

Whatever you think you showed, 18 USC 922(c) still says (emphasis added):

(c) In any case not otherwise prohibited by this chapter, a licensed importer, licensed manufacturer, or licensed dealer may sell a firearm to a person who does not appear in person at the licensee’s business premises (other than another licensed importer, manufacturer, or dealer) only if—....

Since when do instructions on a form trump a statute?

...Cute phrasing; 922(c) applies. By it's wording it would seem controlling, but if it did, a dealer couldn't deliver to an agent for a business entity....

And now we see that you've done an incomplete job of research.

You should have looked at the statutory definitions, specifically 18 USC 921(a)(1):

(a) As used in this chapter—

(1) The term “person” and the term “whoever” include any individual, corporation, company, association, firm, partnership, society, or joint stock company....​

Now let's try to find a way to harmonize (1) 18 USC 922(c); (2) the use of the word "officer" in the instructions on the 4473; and (3) the broad definition of the word "person" in the statutes.

So for the purposes of 18 USC 922(c) a business entity is a "person appearing personally" at an FFL to buy a gun if, but only if, it appears through an officer or similar person (e. g. a managing general partner in the case of a limited partnership) responsible for the management and control of the business entity (i. e., not just any "agent"). That would be consistent other rules which circumscribe who may execute certain types of legally or financially significant documents on behalf of a business, e. g., SEC registration statements, license applications, tax returns, bank documents, etc.

What makes the use of the word "officer" in the 4473 instructions significant, in light of 18 USC 922(c) and the definition of "person" in the statutes, is management and control responsibility.

...While the 4473 says officer, the ATF guide to which I linked and I quoted says authorized person and some of the listed business entities do not even have officers. Even if they did, an officer is an agent of a corporation. ....

Really now. You've gone from instructions on a form to a guide. And let's look at what the sentence really says in context.

On the page in question, the "guide" is describing entries in the FFL's bound book to help FFLs understand how to record various types of dispositions of firearms. This paragraph refers to line 11 on the sample bound book page recording the sale of a gun to a corporation. And in the name column the FFL enters the name of the authorized person, which, as stated in the 4473 instructions, needs to be an officer.