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FREQUENTLY ASKED QUESTIONS
What is the National Firearms Act (NFA)?
The NFA was originally enacted in 1934. Similar to the current NFA, the original Act imposed a tax on the making and transfer of firearms defined by the Act, as well as a special (occupational) tax on persons and entities engaged in the business of importing, manufacturing, and dealing in NFA firearms. The law also required the registration of all NFA firearms with the Secretary of the Treasury. Firearms subject to the 1934 Act included shotguns and rifles having barrels less than 18 inches in length, certain firearms described as “any other weapons,” machineguns, and firearm mufflers and silencers.
While the NFA was enacted by Congress as an exercise of its authority to tax, the NFA had an underlying purpose unrelated to revenue collection. As the legislative history of the law discloses, its underlying purpose was to curtail, if not prohibit, transactions in NFA firearms. Congress found these firearms to pose a significant crime problem because of their frequent use in crime, particularly the gangland crimes of that era such as the St. Valentine’s Day Massacre. The $200 making and transfer taxes on most NFA firearms were considered quite severe and adequate to carry out Congress’ purpose to discourage or eliminate transactions in these firearms. The $200 tax has not changed since 1934.
As structured in 1934, the NFA imposed a duty on persons transferring NFA firearms, as well as mere possessors of unregistered firearms, to register them with the Secretary of the Treasury. If the possessor of an unregistered firearm applied to register the firearm as required by the NFA, the Treasury Department could supply information to State authorities about the registrant’s possession of the firearm. State authorities could then use the information to prosecute the person whose possession violated State laws. For these reasons, the Supreme Court in 1968 held in the Haynes case that a person prosecuted for possessing an unregistered NFA firearm had a valid defense to the prosecution — the registration requirement imposed on the possessor of an unregistered firearm violated the possessor’s privilege from self-incrimination under the Fifth Amendment of the U.S. Constitution. The Haynes decision made the 1934 Act virtually unenforceable.
What is the National Firearms Act (NFA)?
Title II amended the NFA to cure the constitutional flaw pointed out in Haynes. First, the requirement for possessors of unregistered firearms to register was removed. Indeed, under the amended law, there is no mechanism for a possessor to register an unregistered NFA firearm already possessed by the person. Second, a provision was added to the law prohibiting the use of any information from an NFA application or registration as evidence against the person in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration. In 1971, the Supreme Court reexamined the NFA in the Freed case and found that the 1968 amendments cured the constitutional defect in the original NFA. Title II also amended the NFA definitions of “firearm” by adding “destructive devices” and expanding the definition of “machinegun.”
What is the Firearm Owners’ Protection Act?
1986, this Act amended the NFA definition of “silencer” by adding combinations of parts for silencers and any part intended for use in the assembly or fabrication of a silencer. The Act also amended the GCA to prohibit the transfer or possession of machineguns. Exceptions were made for transfers of machineguns to, or possession of machineguns by, government agencies, and those lawfully possessed before the effective date of the prohibition, May 19, 1986.
How Does Final Rule 41F Change Current NFA Regulations?
The final rule affects the NFA regulations by: defining the term “responsible person,” as used in reference to a trust, partnership, association, company, or corporation; requiring responsible persons of such trusts or legal entities to complete ATF form 5320.23, National Firearms Act Responsible Person Questionnaire and to submit photographs and fingerprints when the trust or legal entity files an application to make an NFA firearm or is listed as the transferee on an application to transfer an NFA firearm; requiring that a copy of all applications to make or transfer a firearm, and the specified form for responsible persons (5320.23), be forwarded to the chief law enforcement officer (CLEO) of the locality in which the applicant/transferee or responsible person resides; and eliminating the requirement for certification signed by the CLEO. In addition, the final rule adds a new section to ATF’s regulations to address the possession and transfer of firearms registered to a decedent.
Which firearms are regulated under the NFA?
[26 U.S.C. 5845; 27 CFR 479.11]
How do I obtain an NFA firearm?
An individual who is not prohibited by Federal, State, or local law from receiving or possessing firearms may lawfully obtain an NFA firearm either through an approved transfer of a registered NFA firearm from its lawful owner, or an approved making of an NFA firearm. Applicants should use the ATF Form 4, Application for Tax Paid Transfer and Registration of a Firearm and the ATF Form 1, Application to Make and Register a Firearm, respectively.
[26 U.S.C. §§ 5812, 5822; 27 C.F.R. §§ 479.62-66, 479.84-86]
How old do I have to be to make or own an NFA firearm?
The NFA contains no minimum age in regard to the possession of NFA firearms. Regardless, Federal firearms law prohibits a licensed importer, manufacturer, dealer, or collector (i.e., licensees) from selling or delivering any firearm or ammunition to any individual that the Federal licensee knows or has reasonable cause to believe is less than 18 years of age. Federal firearms law further provides that a licensee shall not sell or deliver any firearm or ammunition that is other than a shotgun or rifle or ammunition for a shotgun or rifle to any individual that the Federal licensee knows or has reasonable cause to believe is less than 21 years of age.
[CFR § 478.99(b)]
How can a person legally obtain NFA firearms?
A person may make an NFA firearm by filing and receiving an approved ATF Form 1 Application to Make and Register a Firearm. A person may transfer an NFA firearm to another person by filing and receiving an approved ATF Form 4, Application for Tax Paid Transfer and Registration of Firearm. Applications to make or transfer a firearm will not be approved if Federal, State, or local law prohibits the making or possession of the firearm.
[26 U.S.C. 5812 and 5822; 27 CFR 479.62 and 479.84]
What is the tax on the transfer of an NFA firearm?
The tax is $200 for the transfer of any firearm except a firearm classified as an “any other weapon” which is $5. An unserviceable firearm may be transferred as a curio or ornament without payment of the transfer tax.
[26 U.S.C. 5811, 5852(e) and 5845(h); 27 CFR 479.11, 479.82 and 479.91]
How is this tax paid?
A check or money order made payable to the Bureau of ATF together with the application forms are to be mailed to:
National Firearms Act Division (ATF Forms 1 and 4)
P.O. Box 5015
Portland, OR 97208-5015
Who is responsible person in the case of a NFA trust?
In the case of a trust, the ATF considers those persons with the power or authority to direct the management and policies of the trust include any person who has the capability to exercise such power and possesses, directly or indirectly, the power or authority under any trust instrument, or under State law, to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on behalf of, the trust a responsible person.
Does the possessor of an NFA firearm have to show proof of registration?
Yes. The approved application received from ATF serves as evidence of registration of the NFA firearm. This document must be made available upon request of any ATF officer. It is suggested that a photocopy of the approved application be carried by the possessor when the weapon is being transported.
[26 U.S.C. 5841(e); 27 CFR 478.101
Is a shotgun a firearm subject to the NFA?
The NFA defines shotgun, in part, as a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of projectiles (ball shot) or a single projectile for each pull of the trigger. A shotgun is a firearm subject to the NFA if the shotgun has a barrel or barrels of less than 18 inches in length. A weapon made from a shotgun is also a firearm subject to the NFA if the weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length.
[26 U.S.C. §§ 5845(a)(1)-(2), (d)]
Can I lawfully make a rifle into a pistol without registering that firearm?
No. A firearm that was originally a rifle would be classified as a “weapon made from a rifle” if ; it has either a barrel less than 16 inches in length or an overall length of less than 26 inches. If an individual wishes to make an NFA firearm, s/he must first submit ATF Form 1, Application to Make and Register a Firearm, pay a $200.00 making tax, and receive approval of the application from ATF before converting the firearm.
[18 U.S.C. § 921(a)(3); 26 U.S.C. §§ 5845(a)(3)-(4)]
Are Paintball and/or Airgun Sound Suppressers NFA firearms?
The terms “firearm silencer” and “firearm muffler” mean any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication.
Numerous paintball and airgun silencers tested by ATF’s Firearms Technology Branch have been determined to be, by nature of their design and function, firearm silencers. Because silencers are NFA weapons, an individual wishing to manufacture or transfer such a silencer must receive prior approval from ATF and pay the required tax.
[26 U.S.C. 5845; 27 CFR 479.11]
If an individual is changing his or her State of residence and the individual's application to transport the NFA firearm cannot be approved because of a prohibition in the new State, what options does a lawful possessor have?
NFA firearms may be left in a safe deposit box in his or her former State of residence. Also, the firearm could be left or stored in the former State of residence at the house of a friend or relative in a locked room or container to which only the registered owner has a key. The friend or relative should be supplied with a copy of the registration forms and a letter from the owner authorizing storage of the firearm at that location.
The firearms may also be transferred in accordance with NFA regulations or abandoned to ATF.
The term “Firearm Silencer” or “Firearm Muffler” means any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for the use in assembling or fabricating a firearm silencer or firearm muffler, any part intended only for use in such assembly or fabrication.
Note: Any device that meets the definition as stipulated above in 18 U.S.C. § 921(a)(24) is also subject to controls of the National Firearms Act 26 U.S.C., Chapter 53.