New Blair County Sheriff: NFA friendly?

[Truckie351]

His main office is in Bechtellsville, PA. The web address is www.princelaw.com.

[GunLawyer001]

I can tell you what is going on here because I asked Sheriff Cooper if it was true, and he told me it was and why.

While the ATF regulations allow a Sheriff to be considered the Chief Law Enforcement Officer of the area, Pennsylvania law does not. Sheriffs are not considered law enforcement officers in PA, they are part of the Court staff. There have been attempts to have PA law changed to make Sheriff's law enforcement officers, but these efforts have been opposed by organizations such as the FOP, PA State Police and the Police Chiefs' Association. So after researching the laws in question, Sheriff Cooper determined that he did not have the legal authority under PA law to sign those forms, and that they would have to be signed by someone who was considered a law enforcement officer, like a local police chief or the PA State Police.

I happen to be an attorney, and in the past had to research whether Sheriff's were law enforcement officers for an unrelated matter, and I can tell you that Sheriff Cooper's analysis of PA law is correct. He assured me that he is a staunch supporter of the Second Amendment, and this has nothing to do with liability for his office or politics. If he were to sign these forms his actions probably wouldn't be valid because he lacks the authority to do so under PA law.

Just wanted to clear this up because it appears there is a lot of misinformation out there right now.

This demonstrates a fundamental misunderstanding of legal definitional issues.

Under the National Firearms Act, a .38 Special revolver is not a "firearm". Under PA law, it is. Under PA law, a silencer by itself is not a "firearm" (although a silenced gun is an offensive weapon), under the NFA it is. That's not a conflict, they are two separate statutory schemes with two fundamentally different sets of definitions (actually, PA law has several very different definitions of "firearm" that vary from statute to statute, and you have to look at the applicable definition for each purpose.)

If Federal law defines a pumpkin to be a firearm, then for purposes of filling out Federal forms, you say that your pumpkin is a firearm. When filling out STATE forms, you do not.

Under the NFA, not only is your Sheriff considered a CLEO, so is your DA. And the state AG. And any judge with plenary authority over felonies. For purposes of a Form 1 or 4, the NFA statutes and regs supersede any local definitions, and the only time local law matters is when local law prohibits an NFA firearm that would otherwise be allowed, the way PA law prohibits bombs that are otherwise permitted as NFA destructive devices.

If the Sheriff doesn't want to sign, he doesn't have to sign. But he should tell the truth about the NFA, and ask ATF whether they allow a PA sheriff to sign under the relevant Federal law (which they do).

And trusts are a poor vehicle for bypassing the CLEO signature requirement, although they are excellent vehicles for bypassing probate if you don't mind tying up your assets for the decades that you'll likely be alive before you die. I recommend LLC's, and less frequently corporations, which are more bulletproof than trusts.

[GLHX2112]

If the Sheriff doesn't want to sign, he doesn't have to sign. But he should tell the truth about the NFA, and ask ATF whether they allow a PA sheriff to sign under the relevant Federal law (which they do).

And trusts are a poor vehicle for bypassing the CLEO signature requirement, although they are excellent vehicles for bypassing probate if you don't mind tying up your assets for the decades that you'll likely be alive before you die. I recommend LLC's, and less frequently corporations, which are more bulletproof than trusts.

I think a few of us figured out the Sheriff was playing politics at our expense, and that statement that he is supposedly "A Staunch Supporter of the Second Amendment" in my opinion, sort of went out the window, or, rather, down the toilet the first time he refused to sign a Form 1 or Form 4. I have a feeling he's really a staunch supporter as long as he/his office doesn't have to do anything about the issue. (Just my opinion)

My main concern right now is in finding the best and most cost effective measure I can use to legally get around "Mr Staunch Supporter of the Second Amendment" and finish my last couple SBR builds and add a couple suppressors to the collection. I've researched Trusts, but now I may have to look into LLC's.

[GunLawyer001]

. . . I've researched Trusts, but now I may have to look into LLC's.

LLC's can be sold, and one very nice aspect is that their validity can be established in about 60 seconds, if the ATF examiner goes to the PA website and enters the name in the corporation index.

A trust is only as valid as the paperwork you keep, while an LLC is provably valid as soon as PA lists it on their website. It speeds things up on approvals. And if you really want to avoid probate, you can add your interest in the LLC to a trust down the road.

[ungawa]

PA LLCs require tax filings every year. You should have an accountant for this. Unless you have a massive NFA collection, you should not expect to actually pay any tax fees. You should be able to get an accountant to perform your personal filings and the filings for your LLC (with no profits or loss in the LLC) for about $200 eachy year. If he/she doesn't save you more than $200 on your taxes, find a new accountant.

There is a decenial filing in 2011. It comes every ten years (to clarify). I don't know if there are any fees but it will cost more from your accountant next year because it will be 2011.

PA likes you to intend to conduct business if you register a company. I don't know the details, but keep that in mind.

I am not an accountant nor am I a lawyer. I'm throwing out my experience to give you things to look into yourself. Don't take anything I've posted for granted, these are simply my opinions.

I still think LLC is a great alternative if you can't get chief LEO/Sheriff signature.

[GunLawyer001]

PA LLCs require tax filings every year. You should have an accountant for this. Unless you have a massive NFA collection, you should not expect to actually pay any tax fees. You should be able to get an accountant to perform your personal filings and the filings for your LLC (with no profits or loss in the LLC) for about $200 eachy year. If he/she doesn't save you more than $200 on your taxes, find a new accountant.

There is a decenial filing in 2011. It comes every ten years (to clarify). I don't know if there are any fees but it will cost more from your accountant next year because it will be 2011.

PA likes you to intend to conduct business if you register a company. I don't know the details, but keep that in mind.

I am not an accountant nor am I a lawyer. I'm throwing out my experience to give you things to look into yourself. Don't take anything I've posted for granted, these are simply my opinions.

I still think LLC is a great alternative if you can't get chief LEO/Sheriff signature.

There are differing opinions among legal and tax professionals on whether there are any consequences for not filing tax returns for an LLC that does no business, has no employees, has no income and no losses. And if there were to be a fine assessed, it would be a percentage of the tax due; if no tax is due, there's no fine.

Pennsylvania is interested in collecting revenue. If you ask the Dapartment of Revenue whether you should file every year, I expect that they'd say "yes", because they like to keep track and sniff out income. But your LLC is not required to be an active business, although it can be.

If you want to carry any losses or profits through to your personal tax return, or if you collected sales tax or generated a taxable profit, then you'll need an accountant. If your LLC has employees, then it becomes complicated, with withholding and worker's comp and other filings and expenses. But there are no tax savings for an accountant to find for you if your LLC has no business activity, so I wouldn't personally hire an accountant to make annual filings.

[GLHX2112]

A lot of great info here. I've traded a few messages on another firearms related site asking opinions from other PA members who have LLC's or Trusts, only had one hit, and that was a guy who had an LLC.

I need to warm up my Search-Fu, and see if PFOA has a permanent sticky on LLC's and Trusts/Class III/NFA issues. Seems like that would be a great idea if there isn't one.

[ungawa]

There are differing opinions among legal and tax professionals on whether there are any consequences for not filing tax returns for an LLC that does no business, has no employees, has no income and no losses. And if there were to be a fine assessed, it would be a percentage of the tax due; if no tax is due, there's no fine.

I think there is a risk if Commonwealth or Fed decides to come after you over NFA and your LLC is out of compliance with tax laws. I don't know what the risk is, but I prefer to comply with tax laws.

Pennsylvania is interested in collecting revenue. If you ask the Dapartment of Revenue whether you should file every year, I expect that they'd say "yes", because they like to keep track and sniff out income. But your LLC is not required to be an active business, although it can be.

Not going to discuss this for personal reasons. I learned from you that PA does not like businesses that don't intend to do business. I'm intentionally leaving it vague.

But there are no tax savings for an accountant to find for you if your LLC has no business activity, so I wouldn't personally hire an accountant to make annual filings.

What I meant was that I don't hire accountants that don't save me more than I pay them. And I have a number of them working for me. I wanted to express that I think it is a good idea to get your NFA LLC filings done by an accountant, it won't cost much (maybe $200 including your personal taxes), and they will probably save you more money than you paid them. And if they don't save you more money than you pay them, you can find one that will. So it's a no-brainer.

For instance, you suggest people might do their "annual" filings themselves. You are a lawyer of all things, and I hope you are not filing your own taxes for an NFA LLC - I'll leave that at that.

Still, it's simple and doesn't cost anything once you do it. I believe LLC is the way to go if your LEO/Sheriff won't sign.

But, it's stood the test for me. In a situation with a dozen cops, guns at my head, and major highways shut down. Cops that clearly wanted to find a reason to bust me to save face (some of them) over all this drama. I was not arrested, and I made it home for dinner with my guns. There you have it.

[Franky4Fingers]

OK then... could someone help me out here?

I'm not going to ask specific prices, but could someone tell me about what it costs to do this trust thing? And what is it exactly? Way I understand things to be is that you basically make up a business name, register it, then the business purchases the NFA item. Anyone who is an owner of the business can legally poses the NFA item. By using a trust, all you have to do in order to obtain the NFA item is fill out the ATF form, pay the $200/$5 NFA tax, wait for approval, then pick your item up. Is that how it works?

What if I already have a business name. Can I use that? Or does it have to be special in some way?

[GunLawyer001]

OK then... could someone help me out here?

I'm not going to ask specific prices, but could someone tell me about what it costs to do this trust thing? And what is it exactly? Way I understand things to be is that you basically make up a business name, register it, then the business purchases the NFA item. Anyone who is an owner of the business can legally poses the NFA item. By using a trust, all you have to do in order to obtain the NFA item is fill out the ATF form, pay the $200/$5 NFA tax, wait for approval, then pick your item up. Is that how it works?

What if I already have a business name. Can I use that? Or does it have to be special in some way?

I wouldn't try to gloss over the details. Possessing any NFA firearm is a felony, unless you've done everything right. It's not a trial & error sort of activity.

A trust exists only on the paperwork you drafted. Corps and LLC's exist as long as the registration hasn't been revoked by the state; the corporate or LLC paperwork after that is necessary to determine who is entitled to possession, but errors in corp/LLC operating agreements or charters/minutes won't invalidate your entity.

Whatever you do, make sure that you THOROUGHLY understand the pitfalls. Any mistake is probably a felony, if you're in possession without a perfect paper trail.