Silencers have never been illegal at the federal level. There are, however, a few states that have banned silencer ownership and/or use. Silencers have been regulated since the 1934 NFA (National Firearms Act) was passed and the NFA placed a $200 tax on the transfer of silencers and machineguns. Just think how much $200 could buy in 1934. You don't think us ordinary folks were being priced out of ownership, do ya?
Currently, these states allow private ownership of silencers:
AL, AR, AK, AZ, CO, CT, FL, GA, ID, IN, KY, LA, ME, MD, MS, MT, NE, NV, NH, NM, NC, OH, OK, OR, PA, SC, SD, TN, TX, UT, VA, WA, WI, and WY.
Of the fifteen states that do not allow civilian ownership, CA, IA, KS, MA, MO, and MI allow Class 3 dealers and Class two manufacturers to possess silencers.
Currently, these states allow private ownership of machineguns:
AL, AR, AK, AZ, CO, CT, FL, GA, ID, IN, KY, LA, MA, ME, MD, MS, MT, ND, NE, NV, NH, NM, NC, OH, OK, OR, PA, SC, SD, TN, TX, UT, VA, VT, WA, WV, WI, and WY.
Buying a title II item.is not a difficult task. You will need to fill out some form and , send the forms to the ATF with a check for $200. Then simply wait for the forms to be approved. That's it.
The local dealer will help the buyer fill out the transfer form. The dealer will also help the buyer fill out another form called the Citizenship form.
This form identifies the buyer either as a United States citizen or a legal resident alien. The dealer will then give the buyer some fingerprint cards. The buyer must take the fingerprint cards to a local police department and be fingerprinted. Fees for this service are usually only a few dollars. The next step for the buyer is to get two passport size photos and attach them to the Form 4. The final step is to take the Form 4 to the local (Chief Law Enforcement Officer) for the county in which the buyer lives. The CLEO must sign the Form 4 before the form can be sent to the BATFE.
When the forms are approved they are sent back to the selling dealer. The dealer then calls the buyer to come pickup the silencer/mg.
Buying a silencer/mg from an out of state dealer is just as easy as buying one from a local dealer. You pay the out of state dealer for the silencer/mg, and select a local Class 3 dealer. The out of state dealer will then transfer the silencer to your local Class III dealer on a Form 3 (tax free). So, you still need to use a local dealer. The local dealer will handle your transfer on the Form 4 ($200 tax). These Form 3s and Form 4s are explained later in the article.
Buying out of state will save you on the sales tax, but you'll pay your local dealer a fee for handling the transfer. Transfer fees are usually $50 to $100.
Form 4 transfers to individuals require fingerprint cards, passport photos, and CLEO signature.
If a corporation is buying the NFA item, instead of sending passport photos and fingerprint cards with the Form 4, the buyer will send one copy of the corporation's articles of incorporation. On the Form 4 the buyer's name will be the legal company name. No CLEO signature is required for a Form 4 transfer to a corporation. Also, the approval process is usually much faster than an approval for an individual.
Are there any down sides of corporate ownership of NFA items?
Maybe not so much "down sides" but there are a few unique things regarding corporate ownership of NFA items. A corporation typically has some annual maintenance. Corporations must be renewed. There is typically a fee for renewal. For example, in GA the annual renewal fee is about $30. What happens to the NFA items if you fail to renew the corporation on time? Depending on the type of corporation, there may be tax implications for the NFA items.
A good thing about corporate NFA ownership is that any authorized corporate officer can possess the NFA item. So, if a couple brothers owned the corporation they could effectively share the silencer. For an individually ownered silencer, the owner must be present when the silencer is being used.
So, what about a Trust? Well, a Trust is an estate planning tool. It is also another legal entity that can own NFA items. It is a simple task to setup a basic Revocable Living Trust. Many of our customers use programs like Quicken's Willmaker to create their own Revocable Trust. As we said earlier, we are not lawyers. We are not offering legal advice here. But, we do know how easy it is to setup a Trust. The beauty of a Revocable Trust is that, as its name indicates, it can be altered at any time. Trustees and assets can be added, changed or removed by the grantor of the Trust.
Transferring a silencer to a Trust is similar to a corporation transfer. The Form 4 must be completed using the Trust's name as the buyer. No fingerprint cards or passport photos are needed and the CLEO signature is also not required. A notarized copy of the Declaration of Trust (or a Certification of Trust) is sent with the Form 4. The approval time for a Trust transfer is usually as quick as a corporation transfer.
The Form 3 is the transfer form typically used to transfer an NFA item tax-free (meaning no $200 tax to BATFE) between manufacturers and dealers or from dealer to dealer. This is how dealers transfer items to other dealers in another state. The approval process for a Form 3 is usually very fast. As of the time of this writing Form 3s faxed to BATFE are taking about 7 to 12 calendar days or so for approval.
The Form 4 is the transfer form used to transfer an NFA item from a seller to a buyer. The form contains information about the NFA item (such as a description of the item, serial number, manufacturer, etc.), information about the seller and information about the buyer. On the back of the form are some questions very similar to the questions found on a 4473 form used to transfer a firearm to a buyer.
The Form 4 is used for $200 transfers between buyers and sellers. Transfers between dealers are typically done on a Form 3.
Form 4 approvals can take between several days and several weeks. Reality is 9 to 65 days. Average as of the time of this writing is 30-35 days. This is somewhat NFA-Examiner dependent. Also, note that transfers to Trusts and corporations usually take much less time than transfers to individuals.
The Form 4 is a tax document. As such, the silencer/mg owner is not compelled by any law to disclose information on the form. However, it is strongly advised that the owner keep a copy of the Form 4 with the NFA item at all times. This copy could be used to educate any law enforcement officer who questions the legality of the silencer. Let's face it, many people don't know silencers are legal. If showing a copy of my Form 4 to a police officer keeps me from spending a night in the local jail, I'll gladly whip that form out. Keep the original copy of your Form 4 in a safe place.
CLEO (Chief Law Enforcement Officer) signature is required on the Form 4 for transfers to an individual. The CLEO is only signing the form indicating there is no known reason the buyer should not be allowed to own or possess NFA items. The CLEO is not accepting any responsibility for future actions of the buyer.
CLEO signature is not required on the Form 4 for transfers to corporations and Trusts.
The Chief Law Enforcement Officer (CLEO) who signs the Form 4 can be any of the following people:
Chief of Police
Head of State Police Agency
A judge with the power of arrest
Any other law enforcement officer approved for this procedure by the National Firearms Act branch of the BATF.
The most common obstacle to purchasing a silencer is the CLEO signature. Some local CLEOs just don't want to sign those Form 4s for whatever reason. Many of the guys who won't sign think they are accepting some liability for future use of that silencer. We even run across a few CLEOs who just don't think us ordinary citizens should own machineguns and silencers. The bottom line is, if your CLEO won't play ball, have no fear. You can always have the silencer transferred to a Revocable Living Trust.
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