Strawman purchase???

[geetarman]

I have a duplicate gun of one I already have being delivered Saturday at my LGS.

My son would like the gun. It is already paid for so my question is: Can my son present his DL and CCW and fill out the 4473 and take possession of the gun or must I do that?

I know I will have to sign for acceptance at the LGS but am concerned, some might view this as a strawman sale.

What are your views?

 

[Brian Pfleuger]

The 4473 asks if the applicant is the actual purchaser. If you paid for the gun, he is not the actual purchaser.

Why not just you pick it up and give it to him, as I assume that's the plan anyway?

If you paid for the gun with the intent of him paying you back, that would also be a straw purchase. There's an ongoing case where a son did this for his father, only because the son could get an LE discount. He's been charged as a straw buyer.

 

[Darren007]

Sorry, misunderstood the question after reading Brian's response!

 

[Brian Pfleuger]

He can do that. It doesn't matter if it was your money that paid for it. What matters is who the background check is done on in order to take possession of it.

That is not true. See my previous post. The source of the money matters a great deal.

 

[Darren007]

I misread that as, I was gonna buy a gun that I ordered but changed my mind. Can my son buy that gun instead.

 

[geetarman]

I am thinking I will fill out the form to stay within the law and just give the gun to him.

I think the intent of a straw man purchase is to acquire a gun for someone who is legally prohibited from owning one.

My son is perfectly legal and he has a CCW. That is what prompted the question.

 

[Brian Pfleuger]

I am thinking I will fill out the form to stay within the law and just give the gun to him.

I think the intent of a straw man purchase is to acquire a gun for someone who is legally prohibited from owning one.

My son is perfectly legal and he has a CCW. That is what prompted the question.

That's was probably the intent but it is not the legal reality. In the case I mentioned, the father is fully legal in owning guns, they even did the transfer from son to father via an FFL but the son was prosecuted because the father gave him the money (a check) for the gun before the son bought it, making the son not "the actual purchaser" in the eyes of the ATF.

 

[RX-79G]

That doesn't sound right. Do you have a link to the case, Brian?

The whole intent of "actual purchaser" is to make sure the person filling out the form is keeping the gun. That would be a rather unusual new type of law that tracks where purchase money comes from. I don't understand how the ATF could prosecute someone for filling out the form as the future owner and then possessing the gun as owner.

I'd let the FFL decide if this was okay with him. Given the fact that the only part of the "purchase" that is legally important is the transfer, I can't see the problem.

 

[Brian Pfleuger]

The whole intent of "actual purchaser" is to make sure the person filling out the form is keeping the gun. That would be a rather unusual new type of law that tracks where purchase money comes from. I don't understand how the ATF could prosecute someone for filling out the form as the future owner and then possessing the gun as owner.

I'd let the FFL decide if this was okay with him. Given the fact that the only part of the "purchase" that is legally important is the transfer, I can't see the problem.

Actually, that's not the whole intent of "actual purchaser" at all. It's perfectly legitimate to purchase a gun and give it as a gift to someone else. The law (ATF) is concerned with the source of the money.

The case in question is found here.

 

[RX-79G]

In that case the person filling out the form was not keeping the gun. That would be like the OP filling it out.

But the person signing the form here is the son, who's keeping the gun.

Abrahmski transfered a gun with someone else's money that he had no intention of keeping. That's why they called it a straw purchase - both factors together. The money demonstrated intent.

The OP's son will transfer a gun to himself that is for himself. The money doesn't come into it because he is not transferring the gun with the intent to hand it off to the person that paid for it. Very different.

 

[Tom Servo]

The whole intent of "actual purchaser" is to make sure the person filling out the form is keeping the gun.

Nope. This is from the 4473 itself:

For purposes of this form, you are the actual transferee/buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself (e.g., redeeming the firearm from pawn/retrieving it from consignment, firearm raffle winner). You are also the actual transferee/buyer if you are legitimately purchasing the firearm as a gift for a third party.

ACTUAL TRANSFEREE/BUYER EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT THE ACTUAL TRANSFEREE/BUYER of the firearm and must answer “NO” to question 11.a. The licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown goes to buy a firearm with his own money to give to Mr. Black as a present, Mr. Brown is the actual transferee/buyer of the firearm and should answer “YES” to question 11.a. However, you may not transfer a firearm to any person you know or have reasonable cause to believe is prohibited under 18 U.S.C. § 922(g), , or (x)

Right or wrong, who is paying for the gun is the issue.

I'd let the FFL decide if this was okay with him. Given the fact that the only part of the "purchase" that is legally important is the transfer, I can't see the problem.

It's not going to be OK with the FFL, and he would be right to refuse the transfer.

 

[Brian Pfleuger]

Well, on reading the 4473 and it's instructions, I don't think it's entirely clear that this situation is adequately addressed to my liking. I guess I'd wait for one of our resident lawyers to chime in.

In any case, I see no reason why the father wouldn't just pick up the gun and gift it to his son, which is what he's doing anyway.

 

[lcpiper]

Geeterman, do both you and your son live in Arizona and the gun is being purchased in AZ?

Can my son present his DL and CCW and fill out the 4473

I ask because I am not sure he even has to fill out a 4473 as he has a CCW. Someone correct me if I am wrong.

 

[Crankylove]

I ask because I am not sure he even has to fill out a 4473 as he has a CCW. Someone correct me if I am wrong.

The 4473 gets filled out for ALL FFL transactions (purchase or transfers), regardless of the owner having a carry permit. Many states, like Utah, forego the background check if the purchaser has a carry permit, and substitute a call to check the validity of the carry permit instead.

This has saved me lots of time by not waiting for a background check to be done (usually 2-3 minutes for the phone call to BCI instead of 15-45 waiting for the background check), but the 4473 still gets done for every purchase or transfer through an FFL.

 

[RX-79G]

Tom,

The OP's situation is like the raffle winner mentioned on the form. He is providing a gun free of charge and his son is the one filling out the 4473 as the person taking ownership of it.

A raffle is a clear legal example of how someone can become the 4473 transferee and not have been the one that paid for it.

All the ATF cares about is whether you are keeping the gun. Gifts (post transfer) are essentially an allowed exception, and a gift is disproved by the ultimate receiver having paid for the gun up front.

Abrahmski received money up front to buy a firearm he planned to pass on to the person funded it. The OP's situation is nothing like that - his son is "or otherwise acquiring the firearm for [him]self", like the form says.

 

[geetarman]

Geeterman, do both you and your son live in Arizona and the gun is being purchased in AZ?

Yep. We hold memberships in the same ranges. This whole thing came up because I do not need two of the same pistol. It did not help that Bud's was unable to deliver for almost a year.

I know my son is going to like the gun. I just don't want to run afoul BATF because of the 4473. I will just fill the thing out as I am the one who paid for it and just give the gun to him. We will both have a good time shooting "our" matching guns.

 

[DaveTrig]

With respect, I don't think Tom or Brian have it right.

I'm an FFL, although a relatively new one. It does not matter who paid for the gun. What matters is who is the actual transferee, that is, who is the gun actually for? The ATF had training videos on this on YouTube. I tried going back to get you the link, but they've been removed.

Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT THE ACTUAL TRANSFEREE/BUYER of the firearm and must answer “NO” to question 11.a.

What's pertinent here is not where the money came from, but rather that the gun is intended for Mr. Smith.

The father completing the 4473 with the intent of giving it to the son is actually closer to being a straw purchase. (It's *not* a straw purchase, because that gift is allowed.) However, if the gun is actually intended for the son, it is preferable to have the son fill out the 4473.

Go ahead and ask your FFL. Neither action would be illegal, but I'll bet he tells you to have your son do the 4473.

 

[Frank Ettin]

This is a pretty muddled situation.

The question for the OP: Have you already paid for the gun?

1. If not, perhaps you should simply approach the dealer and tell him that you don't want the gun now, but your son, assuming he's an Arizona resident, would like to buy it. Then tell the dealer that if that would be agreeable, you son would come in to pay for the gun and take care of the paperwork.
   
   
2. If the OP has paid for the gun or left a deposit, and if it's the intent of the parties that the son would be buying the gun with his own money, I suggest the following approach:
   
   
   • The OP tells the dealer that he doesn't want the gun now.
     
     
   • The OP then tells the dealer that his son would like to buy the gun, and suggests that the son come in to pay for the gun and do the paperwork.
     
     
   • The OP then asks the dealer if the dealer would then refund to the OP the deposit the OP put down.
   
   
3. If the OP actually intends to give the gun to his son as a gift (i. e., the son will not be paying for the gun or reimbursing the OP the cost), he may buy the gun and then give it to his son as a gift. Under the interpretation of the law by the ATF and the instructions on the 4473 if someone is buying a gun as a gift he is the actual purchaser.
   
   
   • If the son is an Arizona resident, the OP may then just give the gun to his son, or if they wish do a transfer through an FFL. But AFAIK, a private transfer between residents is legal under Arizona law without formalities.
     
     
   • If the son is not an Arizona resident, the OP would have to ship the gun to an FFL in the son's State of residence to transfer to the son.
     
     
   • Of course if the son is not an Arizona resident, the first two strategies really don't work.

The way I see it is that the OP has not actually bought the gun yet. He has merely entered into a contract to buy the gun. Any contract can be unwound if the parties agree. So the strategy here is for the OP and the dealer to effectively agree that the OP is relieved of his commitment to buy the gun so that the son is then free to buy it himself.

...I'm an FFL, although a relatively new one. It does not matter who paid for the gun. What matters is who is the actual transferee, that is, who is the gun actually for?...

That is not quite correct. Here's how I laid it out in another thread:

A while ago I outlined current law on straw purchases in this thread on THR:

...The actual offense is violation of 18 USC 922(a)(6), making a false statement on the 4473 (specifically about who is the actual buyer), and has nothing to do with the ultimate recipient being a prohibited person.

See the ATF publication Federal Firearms Regulation Reference Guide, 2005, at page 165 (emphasis added):

15. STRAW PURCHASES

Questions have arisen concerning the lawfulness of firearms purchases from licensees by persons who use a "straw purchaser" (another person) to acquire the firearms. Specifically, the actual buyer uses the straw purchaser to execute the Form 4473 purporting to show that the straw purchaser is the actual purchaser of the firearm. In some instances, a straw purchaser is used because the actual purchaser is prohibited from acquiring the firearm. That is to say, the actual purchaser is a felon or is within one of the other prohibited categories of persons who may not lawfully acquire firearms or is a resident of a State other than that in which the licensee's business premises is located. Because of his or her disability, the person uses a straw purchaser who is not prohibited from purchasing a firearm from the licensee. In other instances, neither the straw purchaser nor the actual purchaser is prohibited from acquiring the firearm.

In both instances, the straw purchaser violates Federal law by making false statements on Form 4473 to the licensee with respect to the identity of the actual purchaser of the firearm, as well as the actual purchaser's residence address and date of birth. The actual purchaser who utilized the straw purchaser to acquire a firearm has unlawfully aided and abetted or caused the making of the false statements. The licensee selling the firearm under these circumstances also violates Federal law if the licensee is aware of the false statements on the form. It is immaterial that the actual purchaser and the straw purchaser are residents of the State in which the licensee's business premises is located, are not prohibited from receiving or possessing firearms, and could have lawfully purchased firearms...

So, if --

1. X says to Y, "Here's the money; buy that gun and then we'll do the transfer to me [when I get back to town, or whenever else].", or
   
   
2. X says to Y, "Buy that gun and hold it for me; I'll buy from you when I get my next paycheck."

or anything similar, if Y then buys the gun, he is not the actual buyer. He is buying the gun as the agent of X, on his behalf; and X is legally the actual buyer. If Y claims on the 4473 that he is the actual buyer, he has lied and violated 18 USC 922(a)(6). His subsequently transferring the gun to X in full compliance with the law, does not erase his prior criminal act of lying on the 4473.

Some more examples --

• If X takes his own money, buys the gun and gives the gun to someone else as a gift, free and clear without reimbursement of any kind, X is the actual purchaser; and it is not a straw purchase.
  
  
• If X takes his money and buys the gun honestly intending to keep it for himself and later sells it to another person, X is the actual purchaser; and it is not a straw purchase.
  
  
• If X takes his money and buys the gun intending to take it to the gun show next week to see if he might be able to sell it to someone at a profit, X is the actual purchaser; and it's not a straw purchase. He may, however have other problems if he manages to sell the gun at the gun show, and the transfer there isn't handled properly. He might also have problems if he does this sort of thing too frequently, and the ATF decides he's acting as a dealer without the necessary license.
  
  
• If X takes his money and buys the gun with the understanding that he is going to transfer the gun to Y and that Y is going to reimburse him for it, X is not the actual purchaser. He is advancing X the money and buying the gun for and on behalf of Y, as Y's agent. So this would be an illegal straw purchase.

Whether or not a transaction is an unlawful straw purpose will often be a question of intent. But prosecutors in various situations can convince juries of intent, often from circumstantial evidence. A slip of the tongue, posting something on the Internet, tracks left by money transfers have all, in one way or another, and in various contexts, helped convince a jury of intent.

Also, note the instructions for question 11.a. on the April 2012 revision of the 4473 (emphasis in original):

...Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT THE ACTUAL TRANSFEREE/BUYER of the firearm and must answer “NO” to question 11.a....

Of course, some "straw purchase" law might be changing before too long. The Supreme Court has granted certiorari in a straw purchase case. This was discussed in this thread.

 

[Tom Servo]

All the ATF cares about is whether you are keeping the gun

I'd like to see a citation for that.

There are two code sections pertaining to this. 18 USC § 924(a)(1)(A) states:

whoever knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter or in applying for any license or exemption or relief from disability under the provisions of this chapter (...) shall be fined under this title, imprisoned not more than five years, or both.

18 U.S.C. § 922(a)(6) states:

It shall be unlawful (...) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter

It comes down to the act of making false statements. Moving on,

It does not matter who paid for the gun.

Untrue. On page 165 of the Federal Firearms Regulations Reference Guide:

The straw purchaser violates Federal law by making false statements on Form 4473 to the licensee with respect to the identity of the actual purchaser of the firearm, as well as the actual purchaser's residence address and date of birth. The actual purchaser who utilized the straw purchaser to acquire a firearm has unlawfully aided and abetted or caused the making of the false statements. The licensee selling the firearm under these circumstances also violates Federal law if the licensee is aware of the false statements on the form. It is immaterial that the actual purchaser and the straw purchaser are residents of the State in which the licensee's business premises is located, are not prohibited from receiving or possessing firearms, and could have lawfully purchased firearms from the licensee.

An example of an illegal straw purchase is as follows: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. If Mr. Jones fills out Form 4473, he violates the law by falsely stating that he is the actual buyer of the firearm.

In short, if Mr. Smith's money paid for the gun, Mr. Jones makes a false statement when he says he's the actual buyer. If Mr. Jones uses his own money to pay for the gun, with the intention of giving it to Mr. Smith as a gift, he can truthfully answer that he's the actual buyer.

 

[RX-79G]

Simple question:

Can I call my son's FFL and pay for a gun my son has on layaway? Can my son then go and do a 4473 and take it home?

That's what the OP was asking. I can't imagine how this is possibly a straw purchase when it is exactly what Frank said you have to do over state lines and is almost identical to the raffle example on the form.

I think you guys have taken the other case out of context. These laws are a pain at times, but they really aren't the kind of trap suggested here.