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Kimber1911

Please explain out of state transfer 2x Form 4 and Form 4 C&R, options.

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21 posts in this topic

Would like to purchase a machine gun which is on a Form 4 in a different state with an individual who has his FFL/SOT.

C&R machine gun, I do not currently hold a C&R.

My preference would be to get the machine gun on our families Gun Trust.

Believe there are two options.

1. Two Form 4’s which would transfer the gun to my FFL at some point. Would the out of state FFL be able to immediately ship the machine gun to my FFL without having to wait on the first Form 4 approval? Who does this first Form 4 make the owner? (My FFL?).

Out of State FFL —> My FFL —> Gun Trust

2. FFL —> Individual (Me) with C&R after Form 4 approval to transfer gun to me. Then later on I could move it to Gun Trust with additional tax stamp if desired.

I currently do not have my C&R but will be mailing the application this weekend if I am able to get finger prints, which I believe I can.

I assume each option would have different amounts of wait time, would option 2 be faster?

Can anyone please explain my options.

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Posted (edited)

If the gun is currently owned/registered to a FFL/SOT it would transfer to you FFL (assuming your FFL is also an SOT) on a tax free Form 3.    What form it transferred to the current owner on is irrelevant as to how it will transfer to your FFL.

As example if the gun had transferred to the current owner on a Form 3 and then he gave up his SOT last year, it would need to go to your FFL on a tax paid Form 4.

Conversely (and what appears to be your case) the current owner acquired it on a tax paid Form 4, either because he didnt have an FFL/SOT at the time or he bought it locally from the previous owner who was also not a FFL/SOT.   (Form 3s are only for transfers when both the transferee and transferor are both FFL/SOTs.)

So it would be Out of State FFL/SOT -> Form 3 to your FFL/SOT -> Tax Paid Form 4 to your Gun Trust.

Your other example, assuming you get a C&R FFL and the gun in question is C&R eligible would be for the current FFL/SOT to transfer the gun directly to you via a tax paid Form 4.   You would then transfer the gun from yourself (as an C&R Licensed Individual) to your Gun Trust via another Tax Paid Form 4.

My personal take is the best option is to have the current FFL/SOT owner E-Form 3 it to your FFL/SOT which is going to take probably less than a week and then transfer it to your Gun Trust directly via a Form 4 which is going to take 8 to 12 months.  Plus you will get the gun to you locally at your FFL for you to inspect, etc. in days vs. months. vs. paying for the gun now and not seeing it for up to a year.

The other C&R license direct Form 4 option is going to take pretty much just as long as that initial out of State Form 4 to your C&R license will take 8 to 12 months and have you pay two transfer taxes in the process to bounce it through you first and then to your Gun Trust.  I guess technically this option may save you a few days not waiting on a Form 3 to clear.   

However if I had the choice of waiting 1 week for the Form 3 to my local dealer and then 10 months to me....or.... leaving the gun with the seller for 10 months waiting a C&R eligible Form 4 transfer to me, I always want to get the gun to my dealer ASAP who I trust and where I can inspect the gun for issues right away vs finding out about a problem January next year.

Hope this helps.

 

Edited by jbntex

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jbntex gave you great info.  Given you want it to land in a trust, not much gain in getting the collector's license.  Your status as a collector cannot be "loaned" to a trust so you don't even get the benefit of skipping the 5320.20 (permission slip) to move it interstate.

Couple of other minor points from your questions - no prints are collected on a C&R license application so no need to spend the time and to answer your question about immediate shipping - no.  Some dealers engage in shortcuts like not waiting for the transfer to be approved and claim an exemption for being a dealer but it's not a good idea, especially with a high $ item.  It can be a painful flush if they get caught.  Wait the extra few days (e-forms) or weeks (paper) for the F3 to be processed.

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RANGER, I THOUGHT YOU MADE IT CLEAR THE GUN WAS ON A FORM 4 AND OUT OF STATE?   if so get ready for the long wait in any case the best way to figure this is to FACE REALITY ! if the gun is indeed on a form 4 , it will be at least 6 months to transfer it ANYWHERE !     IF you wait for your C+R B-4 you file the transfer, it can come directly too you. if not it must go to a local FFL holder, elapsed time the same but usually a fee to them. once it lands in your state, the time to transfer either from a FFL or your C+R to your rtust will be the same, BUT the latter would allow you to have it "in hand",  AND if his examiner is slow the C+R may be faster. I have SEVERAL transfers pending as I type this and they are all taking the same time. dealer to dealer is less than a week if "e-filed" 3-4 weeks if hard copy.   form 4 to my dealer,3-6 months.  dealer to my C+R , 6-13 months.             form 4 to my C+R, 11-13 months.     form 4 to me , 6-22 months.  actually when a dealer is involved the time is controlled by how dedicated the examiner is.  EVERY DEALER is assigned an EXAMINER and if they have a good work ethic it can go quite fast. my record in the past 4  years  is as long as 22 months and as short as 6 months.   my dealers examiner must have good ethics because I have several under 13 months from them


I only accept postal money orders. contact me DIRECTLY before sending any funds                                           email  myoldiron@outlook.com        

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My reading of the ATF NFA Handbook leads me to believe jbntex’s assessment is correct.
My knowledge is limited and I am open to correction of my interpretation if you see an error in this assessment,

This seems to be the correct process:
So it would be Out of State FFL/SOT -> Form 3 to your FFL/SOT -> Tax Paid Form 4 to your Gun Trust.”

1. The party I am purchasing the NFA item from is an FFL/SOT

2. My local dealer is an FFL/SOT

3. 9.4.1 states a Form 3 is used for transfer between FFL/SOT to FFL/SOT

4.  9.4.2 lists three instances in which a Form 4 is to be used. In each instance a nonFFL/SOT is one of the parties.

5. In no instance does it make a distinction as to how the current FFL/SOT acquired the weapon, be it on Form 3 or Form 4.

ATF National Firearms Act Handbook
https://www.atf.gov/firearms/national-firearms-act-handbook

Chapter 9 Transfer of NFA Firearms
https://www.atf.gov/firearms/docs/atf-national-firearms-act-handbook-chapter-9/download

Section 9.4 ATF forms for use in transferring NFA firearms

 

9.4.1 ATF Form 3. Transfers by FFLs/SOTs to other FFLs/SOTs require the filing of ATF Forms 3, Application for Tax Exempt Transfer and Registration of a Firearm, to register firearms to the transferees.166 See also Section 3.2.6.4. Appendix C contains a copy of the form. In these transactions, transferors have no liability for the transfer tax. As previously stated, Forms 3 must be approved by ATF before transfers may be made.

 

9.4.2 ATF Form 4. Forms 4, Application for Tax Paid Transfer and Registration of a Firearm, are for use in transferring serviceable NFA firearms in the following instances: transfers by non-FFLs/SOTs to other such persons; transfers by non-FFLs/SOTs to FFLs/SOTs; and transfers by FFLs/SOTs to nonFFLs/SOTs.167 Appendix C contains a copy of the form. See also Sections 3.2.6.1 through 3.2.6.3. These transfers are subject to the NFA transfer tax, so the forms must be accompanied by the appropriate tax payment. Forms 4 transferring firearms to individuals other than FFLs/SOTs must also be accompanied by transferees’ fingerprints and photographs on FBI Forms FD-258. If the individual’s receipt or possession of the firearm would violate Federal, State, or local law, the form would be disapproved. In addition, an individual transferee must have an appropriate law enforcement official execute the certification on the form.168 See Section 9.8 for more information on law enforcement certifications. Forms 4 must be approved by ATF before the transfers may be made. The completed Form 4, in duplicate, with fingerprint cards, photographs of the transferee, and payment of the applicable transfer tax should be mailed to: National Firearms Act Branch Bureau of Alcohol, Tobacco, Firearms and Explosives P.O. Box 530298 Atlanta, GA 30353-0298 Payment of the transfer tax is to be in the form of a check or money order payable to the Bureau of Alcohol, Tobacco, Firearms and Explosives.

 

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Posted (edited)

I have bought multiple machineguns over the past 20 years from an out of State FFL/SOT that were transferred to the current FFL/SOT/Dealer owner via a tax paid Form 4 and then ultimately transferred to my in-State FFL/SOT on a tax free Form 3.   

I actually just bought another machinegun just last week under this exact scenario.  The dealer bought the gun from an unlicensed individual via a F4 a couple years back but the gun is currently transferring to my FFL/SOT dealer in Texas via a F3.

As long as the current owner/registrant is an FFL/SOT and your dealer is an FFL/SOT it will go on a tax free ATF Form 3.  If the transferring dealer utilizes the ATF e-form system it will probably take less than a week for an approval.   To quote Dan Shea "machineguns are not on forms"  what matters is the FFL/SOT status of the parties executing the transfer.

Think of it this way, if it was true that machineguns "were on Forms" and any machinegun that historically transferred on a tax paid Form 4 was now no longer eligible for a Form 3 transfer in the future... than at this point 30+ years later there would be almost no machineguns left that could transfer on a Form 3 as probably 99% of machineguns out there have bounced through a tax paid Form 4 transfer at some point in their history.

However,  yet today the majority of transferable machineguns are  still advertised as eligible for a fast and tax free Form 3 transfer.  How is that possible......  its not because there are piles of 30 to 90 year old transferable that have remained exclusively on Form 3 transfers for their entire lifespan......its because they are currently owned by an FFL/SOT holding dealer and it makes no difference what type of transfer or "form" they acquired the gun on.

The dealer you bought the gun from should also be able to explain/confirm all of this.

 

Edited by jbntex

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On 5/25/2019 at 1:54 PM, mike todd said:

RANGER, I THOUGHT YOU MADE IT CLEAR THE GUN WAS ON A FORM 4 AND OUT OF STATE?  

The OP indicated the seller holds an FFL and pays SOT - hence the F3. Transfers are determined by current circumstances; the previous transfer manner is not binding on the next. Most firearms bounce back and forth from 3,4, and sometimes 5 in their life.  Some rare ducks even have 10s in their history (came back out into commerce prior to April, 1974).

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lets use the real description and keep it simple, then you can avoid any confusion. right at the start he states the gun is on a form 4 . there is no tax free transfer for firearms on a FORM 4.  INVENTORY on his books can be transferred tax free using FORM-3 to another dealer or tax free agency.  Some dealers have examples on FORM 4 to separate them from inventory making them "personal" property. when those are sold, the tax must be paid AGAIN.  sorry but you cant copy text to support an opinion when the question is asked using incorrect information


I only accept postal money orders. contact me DIRECTLY before sending any funds                                           email  myoldiron@outlook.com        

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RANGER, I value your input and line of thought , but many times you respond and manage to leave things out or it looks like you didn't  get the context of the statement. in the VERY FIRST SENTENCE he stated  the gun was on a FORM -4 and he "has a FFL/SOT.  AGAIN , that is entirely possible as I explained. BUT if the gun is on a form 4 there will be a tax paid to transfer it, EVEN TO ANOTHER  FFL/SOT HOLDER ! any one can quote any part of the code to support an opinion , and nothing changes the facts stated . it  is or it isn't and that's it !                                  


I only accept postal money orders. contact me DIRECTLY before sending any funds                                           email  myoldiron@outlook.com        

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On 5/27/2019 at 6:54 PM, mike todd said:

lets use the real description and keep it simple, then you can avoid any confusion. right at the start he states the gun is on a form 4 . there is no tax free transfer for firearms on a FORM 4.  INVENTORY on his books can be transferred tax free using FORM-3 to another dealer or tax free agency.  Some dealers have examples on FORM 4 to separate them from inventory making them "personal" property. when those are sold, the tax must be paid AGAIN.  sorry but you cant copy text to support an opinion when the question is asked using incorrect information

because your premise here is incorrect.  If the gun has the sellers name on the current form and his FFL/SOT is in his name, the gun automatically is tax exempt on any transfers to another SOT, regardless of whether or not it is for sale/ in inventory.  If you're selling it, it seems it would be "in inventory"?

You can pick up or drop an SOT many times and if it's always in the same name the guns will transfer accordingly depending on if you've paid or not paid the SOT.  If I decided to sell a bunch of my stuff I'd surely be filing for a new FFL/SOT in the name that the guns are registered to facilitate their expedient transfer, especially these days where a long wait will kill the sale of many guns.    HTH

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SORRY JOHNSON, BUT AGAIN YOU "JUMPED" instead of understanding the full context of the sentence. as a matter of fact any transferable INVENTORY will be on a form 3 and can indeed move tax free to another SOT/FFL.  HOWEVER ANY PERSONAL EXAMPLES Could BE ON A FORM4 AND NOT INVENTORY ANY TRANSFER WILL REQUIRE THE $200 TAX EVEN TO HIS OWN INVENTORY and he can indeed sell any personal property without transferring it to INVENTORY . why do you keep hiding from the fact that "KIMBER" stated the item was on a form-4? talk to some of the dealers that have done this in the past , its not that rare. some collectors that decided to get a license kept the collection out of the "business" to protect it from the usual liability of any business. I have been involved in moving several just as described in the past and I have seen NO change in the regulations that make it any different.


I only accept postal money orders. contact me DIRECTLY before sending any funds                                           email  myoldiron@outlook.com        

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Mike's right about the transfers which require tax paid.  Many dealers sell NFA items that are personally owned or brokered which will transfer on a Form 4.  In the case of a personally owned item, it may be owned in the dealers name or a trust, etc. but the FFL is under a corp or llc which would preclude transferring it under the FFL/SOT tax free, ie. Form 4 shows John Smith as the owner but the FFL is Smith Firearms LLC.  If it's brokered, then of course it's transferring on a Form 4 from the private party non-FFL but the dealer is handing the payment and shipping, this is also common.  Not sure why anyone is arguing with him as we have no idea from the OP how the gun is currently papered and how that relates to the selling FFL/SOT licensee. IMO all purchases of MGs should begin with a look at the current owner's paperwork so you know who owns it and how it will transfer.

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7 hours ago, johnsonlmg41 said:

because your premise here is incorrect.  If the gun has the sellers name on the current form and his FFL/SOT is in his name, the gun automatically is tax exempt on any transfers to another SOT, regardless of whether or not it is for sale/ in inventory.  If you're selling it, it seems it would be "in inventory"?

You can pick up or drop an SOT many times and if it's always in the same name the guns will transfer accordingly depending on if you've paid or not paid the SOT.  If I decided to sell a bunch of my stuff I'd surely be filing for a new FFL/SOT in the name that the guns are registered to facilitate their expedient transfer, especially these days where a long wait will kill the sale of many guns.    HTH

I asked the examiner at NFA branch about this today. Regardless if the out of state individual has a FFL/SOT, if the gun in question is registered to the person on a form 4 it transfers to the dealer in the buyers state on a tax paid form 4. You are paying for two stamps to get the out of state gun unless you have the C&R license then the out of state individual can ship you the gun on a form 4 paying for only one stamp.

So Mr Kimber1911 is paying for two stamps if the gun is to be registered to his trust. 

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Posted (edited)

I can only presume this is the ad in question.

sturmgewehr.com/forums/index.php?/topic/12830-smith-wesson-76-cr/

----------------------------------------------------------------------------

Smith & Wesson 76 C&R 9mm SMG with one (1) S&W magazine. Both in excellent condition. Form 4. Former NYS DCS weapon. The weapon has a  new grip, the original grip is included. $12,000 /$100.00 shipped. Shipped directly to C&R collector on Form 4 or Form 4 person to person Nevada. No returns or exchanges. Any questions please PM me. Thank you for looking.  Sold pending funds

Alan

FFL/SOT

-----------------------------------------------------------------------------

The seller is clearly an FFL/SOT based of his signature line.  The seller doesn't say anything about the gun being brokered or not part of his business inventory,  only that is it eligible for a direct C&R Form 4 transfer (which is a benefit to some folks who want it on their C&R license) and or course it can Form 4 transfer to an individual in State (granted what transferable isn't able to).

Looking at the ad I would presume its eligible for a Form 3 transfer given he prominently states he is an FFL/SOT.... that said,  the ad is a bit ambiguous with all of the "Form 4" language mixed in which is irrelevant to the transaction in my opinion.

If this Smith is being brokered or is legally owned by a somebody other than the entity that holds a FFL/SOT license the advertisement should clearly state that.

Granted if I was looking to buy this gun I would ask the seller up front if the firearms is eligible for a F3 transfer to my FFL/SOT before agreeing to buy the gun.

Looking at the past transfer paperwork is no guarantee on how it will transfer going forward.  i.e. just because it last transferred on a F3 is no guarantee of a future tax free transfer and just because it transferred to the dealer inventory via a Form 4  doesn't mean it won't transfer tax free on a F3 to the next buyer.

If the gun is  registered to Alan personally and Alan is a sole prop FFL/SOT, than it can go on a F3. (even if Alan acquired the gun from the former owner via a Form 4)

If the gun is registered to the legal entity "POLLC" (of which Alan is the managing member) and POLLC also holds the FFL/SOT than it can go on a F3 as well.

If the gun is registered to Alan personally "as an individual" who also just happens to be a managing member of an LLC that also happens to have an FFL/SOT license than its going on a tax paid Form 4 as the legal transferor isn't an FFL/SOT.

If the gun is registered to the legal entity "POLLC" which is unlicensed but Alan is a Sole Prop FFL/SOT than again its going on a F4 again as the transferor isnt an FFL/SOT.

If Alan or POLLC is brokering the gun for an unrelated 3rd party who is also unlicensed than it will go on a tax paid Form 4.

In this case Kimber should contact Alan and ask who is the legal registrant of the Smith76, is the legal registrant a current FFL/SOT, and is the Smith76 eligible for a tax free Form 3 transfer.

 

Edited by jbntex

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Posted (edited)

I contacted the ATF and they confirmed jbntex has been correct, and the firearm can be transferred FFL/SOT to FFL/SOT on Form 3.

This is not to imply legal guidance for all and I encourage everyone to contact the ATF themselves with their particular questions.

The ATF answered the phone after three rings answering all of my questions. They were very helpful.

Since my goal was to get the firearm on our gun trust, going FFL/SOT —> FFL/SOT on Form 3 and then Form 4 to Gun Trust is the best route.

Edited by Kimber1911

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5 hours ago, b_san said:

Mike's right about the transfers which require tax paid.  Many dealers sell NFA items that are personally owned or brokered which will transfer on a Form 4.  In the case of a personally owned item, it may be owned in the dealers name or a trust, etc. but the FFL is under a corp or llc which would preclude transferring it under the FFL/SOT tax free, ie. Form 4 shows John Smith as the owner but the FFL is Smith Firearms LLC.  If it's brokered, then of course it's transferring on a Form 4 from the private party non-FFL but the dealer is handing the payment and shipping, this is also common.  Not sure why anyone is arguing with him as we have no idea from the OP how the gun is currently papered and how that relates to the selling FFL/SOT licensee. IMO all purchases of MGs should begin with a look at the current owner's paperwork so you know who owns it and how it will transfer.

This is correct - but the OP did not indicate in his post that the firearm was registered to a separate entity from the business which would change the answer substantially; just that the seller held an FFL and paid SOT and most of us opted not to read more into it. An FFL/SOT can transfer a firearm tax free to another SOT payer and it matters not what form was used to transfer it in.  Another truism: looking at the form is the only way to "really" know.  Sometimes the dealers themselves don't understand their LLC or corporation is not them.  

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Posted (edited)

I NEVER DID ANYTHING BUT AGREE A SOT CAN TRANSFER TAX FREE TO ANOTHER DEALER  with the caveat that it must be on a form3 in his inventory. IN THIS CASE IT WAS PLAINLY STATED IN THE FIRST SENTENCE THE ITEM WAS ON A FORM-4 AT A FFL/SOT. over the years I have processed more than a thousand transfers , maybe several and every possible combination you can imagine has been encountered doing so, BUT NEVER A TAX FREE TRANSFER FOR AN ITEM ON A FORM-4 ! COME ON if that were possible , don't you think some feller would get his bud dealer to wangle some "magic" paper work and get it done in order to save $200 ? hell in some of my recent sales, I have been offered HUGE amounts extra to ship on a form-5 repair so the buyer could enjoy his purchase while waiting for the transfer AND NO WAY IN HELL. I have heard but never been able to confirm that ATF "handled" a estate involving out of state heirs that only wanted to get them sold and no tax was paid. in all fairness they would have been tax free transfers any way so I guess its possible. when I said NEVER , I left out estate items. THEY ARE ALWAYS TAX FREE if documented in a will.

Edited by mike todd
addition

I only accept postal money orders. contact me DIRECTLY before sending any funds                                           email  myoldiron@outlook.com        

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Often guys get into this, buy a bunch of guns tax paid on form 4's, get an SOT later and the guns appear to be on form 4's physically, but will then transfer out on form 3's.  This is what I assume the OP means because it's a fairly common situation?   Actually a lot of dealers actually believe this too and don't know their stuff can now go out tax free, and instead pay the tax thinking the guns aquired before the SOT are somehow "private".   No such thing as private when you acquire an FFL, privacy goes out the window for the most part.

There are other methods of avoiding the transfers and taxes, but that's for another discussion.

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JOHNSON, the agency is GLAD to provide ANY SOT or FFL holder the PROPER methods to comply with a "PRIVATE" collection. it is a long time practice, but they are VERY SPECIFIC !  funny thing about this thread, NOT ONE EXAMPLE OF A TAX FREE TRANFER OF A FORM 4 reg'td piece has surfaced since it started? I would think they would be lined up to help me "swallow" the fact?  I will add it might be possible for an old example on a form 4 held by a NEW LICENSEE to go to inventory tax free simply by getting the FFL, but then it would no longer be on a form 4, so we are back to SQUARE ONE it becomes reg'td on form 3 when on the books. and with that said, I AM OUT OF HERE!  CHEERS


I only accept postal money orders. contact me DIRECTLY before sending any funds                                           email  myoldiron@outlook.com        

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JOHNSON, the agency is GLAD to provide ANY SOT or FFL holder the PROPER methods to comply with a "PRIVATE" collection. it is a long time practice, but they are VERY SPECIFIC !  funny thing about this thread, NOT ONE EXAMPLE OF A TAX FREE TRANFER OF A FORM 4 reg'td piece has surfaced since it started? I would think they would be lined up to help me "swallow" the fact?  I will add it might be possible for an old example on a form 4 held by a NEW LICENSEE to go to inventory tax free simply by getting the FFL, but then it would no longer be on a form 4, so we are back to SQUARE ONE it becomes reg'td on form 3 when on the books. and with that said, I AM OUT OF HERE!  CHEERS


I only accept postal money orders. contact me DIRECTLY before sending any funds                                           email  myoldiron@outlook.com        

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4 hours ago, mike todd said:

funny thing about this thread, NOT ONE EXAMPLE OF A TAX FREE TRANFER OF A FORM 4 reg'td piece has surfaced since it started? I would think they would be lined up to help me "swallow" the fact?  I will add it might be possible for an old example on a form 4 held by a NEW LICENSEE to go to inventory tax free simply by getting the FFL, but then it would no longer be on a form 4, so we are back to SQUARE ONE it becomes reg'td on form 3 when on the books. and with that said, I AM OUT OF HERE!  CHEERS

I don't believe that's how it works.

If an individual who already owned NFA firearms (transferred to him on Form 4) became a FFL/SOT (as a sole proprietor), nothing has to be done to transfer them to the business. He is the business. If he sells one to another SOT, it now transfers on Form 3. I believe that's what johnsonlmg41 was talking about.

There is no Form 3 until he transfers it to another SOT.

Now if that same individual instead had a LLC, and the NFA firearms were all registered to the LLC (on Form 4), then he applied for and received a FFL/SOT in the name of the LLC, the scenario would be the same as above. In both cases, they're already owned by the entity which becomes the FFL/SOT, therefore no transfer has occurred.

But I don't think it's possible to have NFA on a Form 4 in your name (as an individual) then form a new LLC, apply for and receive FFL/SOT in the name of the LLC, and then transfer tax-exempt from you (as an individual) to your newly licensed LLC. You'd have to pay the $200 tax for each firearm transferred from you to your LLC.

 

That's why it isn't technically correct to say any NFA firearm is "on" a form.

The tax-exemption of any NFA transfer depends on 3 things:
status of the firearm (unserviceable/DEWAT, post-86 MG, etc.)
status of the transferor
status of the transferee

 

Another tax-exempt example would be a government agency acquisition. Everyone knows LE can buy from FFLs, but they can also buy a privately-held (on Form 4) NFA firearm from out-of-state. The private unlicensed owner would transfer the NFA firearm to the agency on Form 5 (tax-exempt), even though it came to that seller "on" a tax-paid Form 4.

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