Factoring Criteria for Firearms With Attached “Stabilizing Braces” [Published today in Federal Register]

Federal Register ^ | January 31, 2023 | ATF

[Eagles6]

GOA is working on this full time.
There are between 5-40,000,000 braced pistols in the US.
If everyone does a Form 1 there is no way the ATF could handle it.
A GOA lawyer asked an ATF higher up “What happens if someone files a Form 1 and it isn’t approved within the 120 day grace period?”
The ATF agent said “If the Form I isn’t approved within 88 days it becomes an instant denial, even if it’s the ATF’s fault and enforcement action will ensue.”
So, if you complete a form 1 and it isn’t acted upon within 88 days, you become a felon, in possession of an SBR and you have told the feds what you have and where it is.
In the aftermath, they will use the Form 1 to justify the 3am raid, on your house, by a dozen ninja clad feds, the shooting deaths of you and your dog and make the case that it was reasonable to handcuff your wife and kids and force them to lie face down, in the snow, in their jammies, while they investigate.
Remember, SBRs, suppressors and full auto are legal in the majority of states.
So this is about a $200 tax (Which they are “waiving” for 120 days)?
It’s about registration, confiscation, intimidation and the use of armed fed jackboots to go after political enemies of the left.

[Basket_of_Deplorables]

What if you have a brace that’s sitting in a box and never been mounted on any receiver? Is it legal, all by itself, or are they illegal to own, period? Or only illegal if you have an AR, even if never taken out of its (brace’s) package?

God I despise F-Troop.

[Basket_of_Deplorables]

A buddy can bump fire his 10/22 all day, just by sticking his thumb through his sidebelt loop. Pretty funny, actually.

I guess his belt loop is no longer illegal now.

Maybe.

[Billthedrill]

... this final rule differs so much from the proposed rule that was released for comments...

That's been the problem all along - what finally hit the Congressional Register bore little resemblance to what the ATF was deliberately promulgating during the process. The uncharitable - I'm one - might regard this as a smoke screen.

In fact, what we are being required to do is (1) apply for a Class III tax stamp with all of the attached restrictions, (2) send the ATF contact information and all the necessary information on the gun, and (3) wait. And what happens if you've done all that and the 120 days are up? You're still a felon. Who has, oh by the way, confessed to that felony in writing. Application isn't enough, according to the law you have to have the tax stamp in possession. And their current turnaround for Class III items of all description is between six and nine months. You cannot obey this law in the time allotted because they aren't going to let you.

It will be interesting to see what sort of compliance they get in the first 30 days, if in fact they choose to release that information without lying about it. I don't think it's likely to be high.

[Squantos]

Guns are dangerous ......

[Yo-Yo]

And what happens if you've done all that and the 120 days are up? You're still a felon. Who has, oh by the way, confessed to that felony in writing. Application isn't enough, according to the law you have to have the tax stamp in possession. And their current turnaround for Class III items of all description is between six and nine months. You cannot obey this law in the time allotted because they aren't going to let you.

Before you get too worked up with that, the ATF has already said that as long as you applied before the 120 days, you're still OK if the check isn't completed after the 120 days expire. They also know that they won't be able to complete all the background checks, so the so-called '88 day denial' isn't a thing. And finally there is a court case Hanes v. United States that prevents the ATF from using Form 1 information to prosecute. If your application is for any reason denied, all you have to do is remove the brace.

Watch this, it explains a lot: https://youtu.be/iGdjQ4Iylzo

[Chode]

[Billthedrill]

I’ve seen it. Verbal assurances from the ATF carry no force of law. Nor, incidentally does the $200 “amnesty” - that is a direct alteration of tax law that they may not make so they’re just not going to collect it. My point is that the thing has been botched, deliberately or otherwise, from its inception. All of this should have been worked out in advance, and the clock is ticking.

[Yo-Yo]

Nor, incidentally does the $200 “amnesty” - that is a direct alteration of tax law that they may not make so they’re just not going to collect it.

From the final rule:

With respect to the Department’s authority to seek taxes retroactively from individuals and FFLs (regardless of SOT status), the Departments notes that Congress in 1996 amended 26 U.S.C. 7805(b) to generally prohibit regulations relating to the internal revenue laws from applying retroactively “to any taxable period before” the date on which such regulation is filed with the Federal Register; in the case of a final rule, the date on which any related proposed or temporary rule was filed with the Federal Register and the date on which any notice substantially describing the expected contents of any temporary, proposed, or final rule is made public.

When Congress made this 1996 amendment, however, it stated that “[t]he amendment . . . shall apply with respect to regulations which relate to statutory provisions enacted on or after the date of the enactment of this Act.” Taxpayer Bill of Rights 2, Pub. L. 104–168, sec.1101(b), 110 Stat. at 1452, 1469. Because the NFA was enacted in 1934 (i.e., before the 1996 amendment), the pre-1996 version of 26 U.S.C. 7805 applies. That section provides: “[T]he Secretary may prescribe the extent, if any, to which any ruling or regulation, relating to the internal revenue laws, shall be applied without retroactive effect.” 26 U.S.C. 7805(b) (1994). Section 7805(b) did not include other restrictions on retroactive regulations. Thus, the Department has broad discretion regarding the retroactivity of taxes in this rule. However, the Department believes it is appropriate to forbear this retroactive tax liability. Doing so is appropriate because of past public confusion about what sorts of weapons are in fact NFA firearms and because attempting to collect past making or transfer taxes would impose a substantial administrative burden on ATF to determine which individual or entity did in fact make or transfer the NFA firearm in question.

[Billthedrill]

Yes, that's exactly what it says: "forbear the tax liability". I think we're talking at cross purposes here.

The discretion they're claiming, though, may or may not be quite that broad. The courts will decide.

[Yo-Yo]

Yes, that's exactly what it says: "forbear the tax liability". I think we're talking at cross purposes here. The discretion they're claiming, though, may or may not be quite that broad. The courts will decide.

It is always ultimately up to the courts to decide.

However, a clever lawyer might take those two paragraphs to imply that the ATF admits that they're changing the rules retroactively, not just clarifying 'what has always been so.'

[Billthedrill]

Exactly.

[Redcitizen]

For Later