Familial transfer question

[kemasa]

I guess one could argue a Schrödinger's cat paradox. Paying for a firearm makes it both yours and yet not yours until you take legal possession of it..... Some dealers may see it as a legitimate gift and some will not.

That said I can say that any firearm I ship is to be Transferred/4473'd/DROS's to the person who paid for the firearm only. This is the only way I can fight chargebacks. On a few occasions the only thing that saved me was sending a copy of the 4473 that the other shop transferred showing in fact that the purchaser did the paperwork and signed the 4473. If those stores transferred to a friend I might of lost those disputes.

Most transfer firearms I receive from Buds/Grabagun/and others have similar veribage that this firearm it to be transferred to XXXX XXXX only. If I receive a transfer for person A and person B tried to do the paperwork I won't do it unless I get the green light from the shipper.

Paying doesn't make it yours, especially not when there are transfer requirements. You can pay for a vehicle, which may give you an interest in the vehicle, but you don't own it until it is transferred into your name. The same with real estate.

The BATF views a firearm being "owned" by the dealer when it is in their inventory, even if they didn't pay for it. A customer can't just demand that a firearm be turned over to them just because they paid for it, it has to be legally transferred. Consider an off roster firearm where the person doesn't have an exemption, the customer paid for it, but they can't own it.

 

[kemasa]

I believe in California both parties have to be present for the PPT, that being said separate the lower from the upper. Obviously the lower has a serial number the upper does not need to be attached, you also have to remove the magazine release button. It does not become a usable firearm until the upper is installed to the lower.

What is being discussed isn't a CA PPT.

 

[Constitutional Armory]

But the word "transfer" does. How does one transfer a firearm from one family member to another if they never actually owned it? You are ignoring that very important word and instead trying to focus on just the word gift.

Has all this been brought up in a audit or if anyone has been told directly yes or no it's legal or not or is every auditor different from area to area?

 

[kemasa]

I don't believe physical possession is actually required.
It seems to be the FFL's option on how they enforce that.
I have a local FFL who lets my dad order guns sent to my local FFL and then accepts a gift letter with my dad's drivers license.
The FFL's interpretation is that since it's sent to the FFL and has a gift letter, it's a gift.

What you believe really doesn't matter. To transfer a firearm FROM a family member using the exemption of the intrafamilial transfer, it must have been transferred to that family member first.

The opinion of the FFL doesn't matter, what matters is the law. There are things that you might be able to get away with, which is illegal and which eventually you might get caught, charged, and convicted.

You local FFL is a fool and sooner or later they are likely to get caught and have a huge problem. There is no gift exemption, it is a family transfer exemption. Just getting a gift letter doesn't change the reality that it isn't a transfer from the family member.

 

[kemasa]

I believe that's how it actually works.
Technically, I believe my dad could order the gun FROM my local FFL and designate it as a gift for me and the letter makes it a legal gift even though it's sourced directly from my local FFL.

Yes, it would be a legal GIFT, but that doesn't magically make it is legal FAMILY TRANSFER. Again, there is no gift exemption, it is a family transfer exemption, if the person never had it, it isn't a transfer from them, so it doesn't qualify.

 

[Constitutional Armory]

Yes, it would be a legal GIFT, but that doesn't magically make it is legal FAMILY TRANSFER. Again, there is no gift exemption, it is a family transfer exemption, if the person never had it, it isn't a transfer from them, so it doesn't qualify.

But I heard under ATF guidelines "ownership" which is the purchaser happens when the exchange for money of initial process is the one who buys it is considered the buyer or purchaser which is ownership

 

[kemasa]

I've done a ton of research on this and I have to disagree with your comment. It took me a long time to get to that point, but I now feel strongly based on an CA attorney who specializes in this and my direct communication with CA BOF. Federally, the ATF has issues around interstate when it's a commercial transaction. The non compliant firearm is not the issue when completing an intrafamily transfer from an out of state (non CA) qualified family member. Obviously, the firearm must meet non assault weapon rules (mag capacity and non threaded barrel) but does not need to be on the CA roster, in 99% of the cases it won't be on the CA roster. The out of state donor can transport into CA (following all rules for transportation) a handgun, gift to their qualified family member without the involvement of an FFL, and that family member can fill out the BOF 4544A or CFARS process. I can't wait to hear the responses I get to this post lol

Federal law disagrees with you. An intrafamilial transfer is exempt from the roster. No, an out of state resident can not legally bring a firearm and transfer it to a resident of another state with limited exceptions, such as an inheritance. You need to read the federal law regarding this.

 

[kemasa]

But I heard under ATF guidelines "ownership" which is the purchaser happens when the exchange for money of initial process is the one who buys it is considered the buyer or purchaser which is ownership

Remember that the intrafamilial transfer exemption is CA law, not federal law. Who is considered the buyer relates to when the 4473 is being filled out.

 

[kemasa]

Has all this been brought up in a audit or if anyone has been told directly yes or no it's legal or not or is every auditor different from area to area?

The audit doesn't really matter, it is a violation of the law, which the inspector can refer to be investigated further, with others doing the criminal charges. I have always been told it is illegal, but remember asking question from the CA DOJ isn't asking legal advice, what they say is meaningless as you can still be charged even if you do what they claim you can do.

 

[kemasa]

My response to this is:
Will this Attorney put their money where their mouth is?
Will they put this in writing and cite all relevant exemptions that will allow this?
Will they offer to defend anyone charged with a crime for doing this?

Direct communication with CADOJ BOF means nothing. They have put illegal advice in writing on many occasion and had to back track.
I can email them the same questions 3 times and get 3 different responses.

The two biggest CA Gun Lawyers I know of have both said the CADOJ giving people advice on just submitting those form are not following Federal Law.

More important is that response completely ignore FEDERAL law. The CA DOJ has told people that they can go pick up a firearm out of state from a family member and then just fill out the form, which violates federal law. If you ask the BATF about it, they will tell you that it violates federal law.

I had a customer who followed what the CA DOJ said, then found out it was illegal. To bring the firearms back would also be illegal as it would be another illegal transfer. The person I talked to at the BATF said to tell them to never do it again.

 

[Constitutional Armory]

Remember that the intrafamilial transfer exemption is CA law, not federal law. Who is considered the buyer relates to when the 4473 is being filled out.

Well when you have out of state filling out 4473 there the buyer in the case they buy it at store then it goes to ca FFL which they fill out 4473 stating there the buyer also which in both accounts the ca recipient is not the buyer in reality

 

[kemasa]

As I understand the 1968 federal Gun Control act, handgun transfers between residents of different states must go through an FFL in the state of the receiving party but long guns may go through an FFL of the seller's state so long as the parties are present and the long gun is legal in both states. 922(b)(3).

(A) shall not apply to the sale or delivery of any rifle or shotgun to a resident of a State other than a State in which the licensee’s place of business is located if the transferee meets in person with the transferor to accomplish the transfer, and the sale, delivery, and receipt fully comply with the legal conditions of sale in both such States

[edit]... which doesn't help you with California's requirements, but it seems you are ok with the feds.

Yes, that works in free states, but since only CA FFLs can submit a DROS, it doesn't apply to CA residents.

 

[kemasa]

Well when you have out of state filling out 4473 there the buyer in the case they buy it at store then it goes to ca FFL which they fill out 4473 stating there the buyer also which in both accounts the ca recipient is not the buyer in reality

Yes, they are. When the CA person receiving the firearm fills out the 4473, they are considered the buyer even though they are getting it as a gift. Both are considered the actual buyer, as strange as that might sound. The person buying it doesn't intend it for themselves, but the fact that they are buying it as a gift makes it acceptable. The person who is getting it isn't actually paying, but they are considered the actual buyer as it is intended for them. Read the 4473 instructions.

 

[1911-CV]

Yes, that works in free states, but since only CA FFLs can submit a DROS, it doesn't apply to CA residents.

Like I said, it doesn't help you bring the long gun into CA, but you are legal federally to purchase a rifle at an out-of-state FFL. Initial statement did not differentiate between handgun and long gun. Could be handy if, for instance, you go hunting in Montana and find out when you get there that the airline dropped a pallet on your rifle. You can go to the corner FFL and buy another that would be legal in CA and save your hunt. But, as you point out, that will not help you when it's time to come home.

 

[kemasa]

Like I said, it doesn't help you bring the long gun into CA, but you are legal federally to purchase a rifle at an out-of-state FFL. Initial statement did not differentiate between handgun and long gun. Could be handy if, for instance, you go hunting in Montana and find out when you get there that the airline dropped a pallet on your rifle. You can go to the corner FFL and buy another that would be legal in CA and save your hunt. But, as you point out, that will not help you when it's time to come home.

No, it won't help you at all as the out of state FFL can't sell it to you at all as a CA resident. Federal law requires that the FFL, in this case not in CA, has to follow the laws of both states, which they can't do as they can't fill out the DROS. It is far more than just bringing the firearm into CA, it is that you can't get possession of it outside of CA.

This means that CA residents are NOT legal to purchase a rifle at an out of state FFL. There are other states in which a resident can't buy firearms while out of their state of residence.

 

[Constitutional Armory]

Yes, they are. When the CA person receiving the firearm fills out the 4473, they are considered the buyer even though they are getting it as a gift. Both are considered the actual buyer, as strange as that might sound. The person buying it doesn't intend it for themselves, but the fact that they are buying it as a gift makes it acceptable. The person who is getting it isn't actually paying, but they are considered the actual buyer as it is intended for them. Read the 4473 instructions.

So what I would want to find out is what is defined as "transfer" because remember words are also defined and from what I read is in penal code is who is actually buying the firearms with funds itself is acquiring legal title which law is required to execute a transfer. So in terms of transfer' means the transfer of title to, or possession of, a firearm." Meaning when parent buys it online they are taking TITLE this is ca law so in true sense family member buying online and being transferred to ca FFL is simatanusly taking title ownership and then transfer.

 

[kemasa]

So what I would want to find out is what is defined as "transfer" because remember words are also defined and from what I read is in penal code is who is actually buying the firearms with funds itself is acquiring legal title which law is required to execute a transfer. So in terms of transfer' means the transfer of title to, or possession of, a firearm." Meaning when parent buys it online they are taking TITLE this is ca law so in true sense family member buying online and being transferred to ca FFL is simatanusly taking title ownership and then transfer.

No, if a person buys online they are NOT taking title, it just doesn't work that way.

 

[kemasa]

I was just being a Richard. Pretty much everything you have posted is true. Yiu can use cfars. But feds would say otherwise

Well, when it violates federal law, there is an issue. Doesn't matter if CA is ok.

 

[Constitutional Armory]

No, if a person buys online they are NOT taking title, it just doesn't work that way.

The law explicitly says that whoever is purchasing is taking title ownership am I getting something wrong?

 

[kemasa]

The law explicitly says that whoever is purchasing is taking title ownership am I getting something wrong?

Purchasing as in filling out all the paperwork, not just paying.