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View Full Version : Interstate Intrafamilial "Inheritance" of Off Roster Handguns


Frosty
06-26-2010, 3:30 PM
I'm sorry to keep coming on here asking for legal counsel, but once again I find myself somewhat bewildered by the wording and red tape surrounding the family transfer laws in California.

So here's the situation, say my buddy Joe Shmoe is a CA resident and his mother lives in Texas. His mother goes out and buys XXX handgun that isn't on the California approved list. Shortly after purchasing, she finds it not to her liking, maybe her arthritis kicks up, and decides the pistol would be better suited living with her son in CA. She wants to bequest, as a gift, her pistol to her son; can this be made to happen?

I found this page: http://www.calguns.net/calgunforum/showthread.php?t=114142 which is awesome (thanks Librarian).

It links me to the "Intrafamilial Transfer Form" which in itself gives little detail regarding the transaction. From what I understand, this is a legal process when the transfer is not a purchase, but rather a gift or inheritance. So here are my questions:

1. Do these guns still go through an FFL? If not, are they simply shipped to her sons house from Texas? Does he/can he just go to Texas and pick up the pistol? I feel like FFLs specifically do not deal with off roster handguns, and as such wouldn't be responsible for this kind of transfer.

2. Can these transfers be done with any frequency? ie what are the restrictions keeping him from bringing multiple off list handguns into the state each year? I get the feeling the wording of "inheritance" and "gift" might come into play here.

3. Upon receiving these handguns gifted to him, is he restricted in any way from transferring these firearms via PPT to any other CA resident?

I feel like I'm really just getting my hopes up that there is some way to get a nice off roster pistol. I'm sure this has all been thought of, and I'm sure there's something stopping people like me from flooding the market with off list handguns. But a guy can hope can't he? Thanks in advance for all of your help CGers, happy shooting!

sfwdiy
06-26-2010, 3:51 PM
A gift is not an inheritance. Two different issues. You inherit something when someone dies. That's an operation of law, not an intrafamilial transfer. Transfers from out of state have to go through an FFL, generally.

These are the relevant portions of Librarian's post you referenced:


98% of the time an INTERSTATE transfer of any kind to an non-licensed California resident MUST go through a CALIFORNIA-licensed FFL.



An unlicensed California resident CAN buy guns out of state, from an FFL if the out of state FFL is willing -

the gun MUST be sent to a California-licensed FFL for DROS and the usual wait;
the unlicensed California resident MAY NOT take possession of the firearm and bring it back to California; s/he MUST receive it at the California FFL.


There is no such thing as a California PPT with a California buyer and an out of state seller - 18 USC 822 (a)(5) says no. So if a friend from NV wants to sell you a gun, both of you go to a willing California FFL and do a sale - but it will not be a PC 12082 PPT.

The Feds do not have the concept of 'immediate family' that California does. Intrafamilial interstate transfers are legal, but still must use a California-licensed FFL.

Remember that handguns purchased from out of state, routed through a California FFL, must be on the California Roster, or the California FFL may not deliver it to the buyer.

Note the repeated use of the expression willing FFL; California FFls need not accept out of state transfers. That's a business decision, not a legal requirement.



--B

Librarian
06-26-2010, 4:44 PM
So here's the situation, say my buddy Joe Shmoe is a CA resident and his mother lives in Texas. His mother goes out and buys XXX handgun that isn't on the California approved list. Shortly after purchasing, she finds it not to her liking, maybe her arthritis kicks up, and decides the pistol would be better suited living with her son in CA. She wants to bequest, as a gift, her pistol to her son; can this be made to happen?


Let me take this apart.

1) The receiver is CA-Joe

2) The giver is TX-Mom

The Feds will say this is an interstate transfer (http://wiki.calgunsfoundation.org/index.php/Transferring_firearms_Interstate).

IF TX-Mom should pass away, and leave the gun to CA-Joe in her will, THEN

that would be a bequest or an inheritance, as sfwdiy said. FedLaw says those transfers do not need to use an FFL
you would use the Operation of Law form
because it's intrafamilial (http://wiki.calgunsfoundation.org/index.php/Transferring_Firearms_Among_Some_Family_Members), CA allows it to involve handguns that are not on the Roster (http://wiki.calgunsfoundation.org/index.php/The_Safe_Handgun_List).

IF TX-Mom just wants to give the gun to CA-Joe THEN

that transfer must go through a CA-FFL, who will charge fees and do the DROS
because the FFL does the DROS, you do not use the Operation of Law form.
because it's intrafamilial (http://wiki.calgunsfoundation.org/index.php/Transferring_Firearms_Among_Some_Family_Members), CA allows it to involve handguns that are not on the Roster (http://wiki.calgunsfoundation.org/index.php/The_Safe_Handgun_List).

IF TX-Mom were CA-Mom, THEN
the Feds are not involved - the whole transaction remains in CA
the intrafamilial transfer would still be exempt from the Roster, AND
the Operation of Law form would work, so no FFL would be needed.

dantodd
06-26-2010, 5:04 PM
IF TX-Mom just wants to give the gun to CA-Joe THEN

that transfer must go through a CA-FFL, who will charge fees and do the DROS
because the FFL does the DROS, you do not use the Operation of Law form.
because it's intrafamilial (http://wiki.calgunsfoundation.org/index.php/Transferring_Firearms_Among_Some_Family_Members), CA allows it to involve handguns that are not on the Roster (http://wiki.calgunsfoundation.org/index.php/The_Safe_Handgun_List).


I'm pretty sure that TX-Mom can SELL Joe a gun too as long as it is in "infrequent" transfer.

Librarian
06-26-2010, 5:58 PM
I'm pretty sure that TX-Mom can SELL Joe a gun too as long as it is in "infrequent" transfer.

Sure, but then it wouldn't be Roster-exempt, which was the start of the question; 'infrequent' doesn't matter until we go to CA PPT sellers, which does not work interstate.

ke6guj
06-26-2010, 6:31 PM
Sure, but then it wouldn't be Roster-exempt, which was the start of the question; 'infrequent' doesn't matter until we go to CA PPT sellers, which does not work interstate.where do you get that if a parent sells a handgun to a child that they lose the roster-exemption?

12132. This chapter ("Unsafe handgun" Rostering stuff) shall not apply
to any of the following:

(b) The sale, loan, or transfer of any firearm that is exempt from the
provisions of subdivision (d) of Section 12072 pursuant to any applicable
exemption contained in Sec 12078, if the sale, loan, or transfer complies
with the requirements of that applicable exemption to subdivision (d) of
Sec 12072.

If 12132(b) is the exemption that we use to get non-rostered intra-family inter-state handguns transfered though an FFL, it would seem that sales would also qualify for the exemption.

And I don't see where 12078(c)(2) prohibits sales between intra-family members from being exempt from the PPT requirement.
12078(c)(2) Subdivision (d) of Section 12072 shall not apply to the infrequent transfer of a handgun by gift, bequest, intestate succession, or other means by one individual to another if both individuals are members of the same immediate family and all of the following conditions are met:
(A) The person to whom the firearm is transferred shall, within 30 days of taking possession of the firearm, forward by prepaid mail or deliver in person to the Department of Justice, a report that includes information concerning the individual taking possession of the firearm, how title was obtained and from whom, and a description of the firearm in question. The report forms that individuals complete pursuant to this paragraph shall be provided to them by the Department of Justice.
(B) The person taking title to the firearm shall first obtain a basic firearms safety certificate. If taking possession on or after January 1, 2003, the person taking title to the firearm shall first obtain a handgun safety certificate.
(C) The person receiving the firearm is 18 years of age or older.

Librarian
06-26-2010, 7:01 PM
If 12132(b) is the exemption that we use to get non-rostered intra-family inter-state handguns transfered though an FFL, it would seem that sales would also qualify for the exemption.


I don't think the 12078(c) language 'or other means' includes sales; (2) Subdivision (d) of Section 12072 shall not apply to the
infrequent transfer of a pistol, revolver, or other firearm
capable of being concealed upon the person by gift, bequest,
intestate succession, or other means by one individual to
another if both individuals are members of the same immediate
family The context suggests some other odd transfer in the same group. However, I'd be happy to be shown to be wrong here - such questions have led to interesting results!

And I don't see where 12078(c)(2) prohibits sales between intra-family members from being exempt from the PPT requirement.

Uh, what? I can't parse that one.

ke6guj
06-26-2010, 7:08 PM
I don't think the 12078(c) language 'or other means' includes sales; The context suggests some other odd transfer in the same group. However, I'd be happy to be shown to be wrong here - such questions have led to interesting results!I don't think that "or other means" has been limited to exclude "sales". I would argue that "sales" would be included unless specifically excluded somehow.

Think about this, if CA-father has a Colt Delta Elite that his CA-son wants, can CA-son buy it from CA-father and file an intra-family registration on it? Or must he do a PPT since he paid for it?



Uh, what? I can't parse that one.let me try to re-write that one.

I don't see where the PPT exemptions in 12078(c) exlude intrafamily sales from that exemption.

Librarian
06-26-2010, 7:20 PM
I don't think that "or other means" has been limited to exclude "sales". I would argue that "sales" would be included unless specifically excluded somehow.

Think about this, if CA-father has a Colt Delta Elite that his CA-son wants, can CA-son buy it from CA-father and file an intra-family registration on it? Or must he do a PPT since he paid for it?

I don't think 'or other means' includes sales - I think the Legislature isn't that sloppy. [ETA: for a wonder - and maybe in just this case. The ability of the Leg to screw up conceptually is apparently unlimited; textually, at least once there were reviewers.] If you look at 12078(b) it says (b) (1) Section 12071, subdivisions (c) and (d) of Section 12072,
and subdivision (b) of Section 12801 shall not apply to deliveries,
sales, or transfers of firearms between or to importers and
manufacturers of firearms licensed to engage in that business
pursuant to Chapter 44 (commencing with Section 921) of Title 18 of
the United States Code and the regulations issued pursuant thereto.
(2) Subdivision (b) of Section 12801 shall not apply to the
delivery, sale, or transfer of a handgun to a person licensed
pursuant to Section 12071, where the licensee is receiving the
handgun in the course and scope of his or her activities as a person
licensed pursuant to Section 12071.

Leaving "sales" out of (c) when it is in (b) suggests that at least in 1994 the Legislature had a clue.

let me try to re-write that one.

I don't see where the PPT exemptions in 12078(c) exlude intrafamily sales from that exemption.

Ah. OK. I think that's moot until we establish intrafamily sales are covered.

yellowfin
06-26-2010, 7:34 PM
Tax free transfer on Form 5?

ke6guj
06-26-2010, 7:49 PM
I don't think 'or other means' includes sales - I think the Legislature isn't that sloppy. [ETA: for a wonder - and maybe in just this case. The ability of the Leg to screw up conceptually is apparently unlimited; textually, at least once there were reviewers.] If you look at 12078(b) it says Leaving "sales" out of (c) when it is in (b) suggests that at least in 1994 the Legislature had a clue.
I think we would have to agree to disagree on that right now.

So you would say, based on your reading of the PC, that that CA-father sold his CA-son that Colt Delta Elite, that he would have to do a $35 PPT instead of doing a $19 intrafamily registration?

ke6guj
06-26-2010, 7:49 PM
Tax free transfer on Form 5?huh?

Librarian
06-26-2010, 8:34 PM
I think we would have to agree to disagree on that right now.Not a problem - without case law to guide and without a paid-for legal opinion, I won't be dogmatic about it.

So you would say, based on your reading of the PC, that that CA-father sold his CA-son that Colt Delta Elite, that he would have to do a $35 PPT instead of doing a $19 intrafamily registration?

Yes, that's how it looks to me.

Frosty
06-26-2010, 9:21 PM
IF TX-Mom just wants to give the gun to CA-Joe THEN

that transfer must go through a CA-FFL, who will charge fees and do the DROS
because the FFL does the DROS, you do not use the Operation of Law form.
because it's intrafamilial (http://wiki.calgunsfoundation.org/index.php/Transferring_Firearms_Among_Some_Family_Members), CA allows it to involve handguns that are not on the Roster (http://wiki.calgunsfoundation.org/index.php/The_Safe_Handgun_List).


Wow you guys have really done your homework; ever consider moonlighting as paralegals? :D

So I'm sorry to digress here, but let me see if I'm hearing you correctly. Basically, TX mom just has to bring this off roster handgun to CA and transfer it to her child through an FFL, presumably proving their familial relationship. I was under the impression that CA FFLs wouldn't touch off roster handguns, so this is just an exception for the intrafamilial deals? Can the gun be shipped to said CA FFL from TX, presumably with similar proof of the family relationship? How have more people not taken advantage of a loophole like this?

Librarian
06-26-2010, 10:25 PM
Wow you guys have really done your homework; ever consider moonlighting as paralegals? :D

1.So I'm sorry to digress here, but let me see if I'm hearing you correctly.

2.Basically, TX mom just has to bring this off roster handgun to CA and transfer it to her child through an FFL, presumably proving their familial relationship.

3.I was under the impression that CA FFLs wouldn't touch off roster handguns, so this is just an exception for the intrafamilial deals?

4.Can the gun be shipped to said CA FFL from TX, presumably with similar proof of the family relationship?

5.How have more people not taken advantage of a loophole like this?
1.You are.

2.Yes.

3.Yes.

4.Yes, but check with the CA FFL first - sometimes they don't want to deal with anything out of the ordinary, sometimes they want it shipped from another FFL, and you need to know the fee the FFL would charge.

5.Some have - but as you may have noticed, the process is obscure.

saber
06-26-2010, 10:42 PM
In case you are wondering why this doesn't happen more, I have a couple of quick thoughts including many FFL aren't familiar with the process and the general hassle of the process (getting your family to get a gun, shipping it to an FFL, etc.) Also the recieving FFL can charge what he wants as they aren't limited by the PPT $35 dollar limit.

dantodd
06-27-2010, 12:19 AM
I was under the impression that CA FFLs wouldn't touch off roster handguns, so this is just an exception for the intrafamilial deals?

California FFLs are generally quite familiar with and deal with off roster handguns all the time. All PPTs (person to person transfers) are exempt from the roster. The exception here is that when the transfer is between direct lineal family members (grandparent-parent-child) there is a separate roster exemption even for interstate transfers. This interstate exemption is not often exercised so many FFLs are not aware of it.

Frosty
06-27-2010, 1:54 AM
Awesome, thanks for all your help everyone, especially you Librarian, I'm not sure how you found my thread so quickly, but kudos; your advice has been indispensable. I'm going to see if I can't make some reasonably priced Kel Tecs appear in the for sale section in the near future. Happy shooting CGers!

barracudamuscle
06-29-2010, 1:44 AM
Not to thread creep but can my father a Resident of CO gift a gun to my wife a CA resident? Unsure if husband/wife crosses that way or not. I also am a resident of CO trying to get out of CA so shes behind but wouldnt mind having the firearm in CA for home defense.

If thats so, am I able to possess it in CA since it registered to her and she loaned it to me for target practice for the day? Obviously I can own it in CO, I cant bring it to CA when I visit because communist run that concentration state.

Thanks Pat

Librarian
06-29-2010, 8:09 AM
Not to thread creep but can my father a Resident of CO gift a gun to my wife a CA resident? Unsure if husband/wife crosses that way or not. I also am a resident of CO trying to get out of CA so shes behind but wouldnt mind having the firearm in CA for home defense.

If thats so, am I able to possess it in CA since it registered to her and she loaned it to me for target practice for the day? Obviously I can own it in CO, I cant bring it to CA when I visit because communist run that concentration state.

Thanks Pat

No, father-in-law <--> daughter-in-law doesn't work - but you, as her husband, can give her one.

Or she could just buy one here.

Why do you believe you cannot bring a handgun from CO to CA when you visit? Presuming not a CA 'assault weapon' and no 'large-capacity magazines', no law against it.

Frosty
06-29-2010, 12:01 PM
OK I've one more question. Would the son from CA be able to go to TX, pick up the off roster handguns, and drive them back into CA and straight to his FFL? I get the feeling that's a stretch, seeing as how he would be bringing unregistered off roster firearms into the state from out of state. I only ask because shipping and FFL fees for receiving the guns are likely the most expensive part of this kind of transaction. Any other suggestions on how someone could get around these charges?

ke6guj
06-29-2010, 12:05 PM
OK I've one more question. Would the son from CA be able to go to TX, pick up the off roster handguns, and drive them back into CA and straight to his FFL?no. there is no exemption to federal law if you import a firearm to your home state and take it directly to an FFL to paper. Plus, the TX resident violated federal law by transfering a firearm to a resident of a different state without using an FFL to facilitate the transfer.

Any other suggestions on how someone could get around these charges?either that TX resident ships it to your CA FFL, or delivers it to that CA FFL in person. Thats basically it.

barracudamuscle
06-29-2010, 12:35 PM
Why do you believe you cannot bring a handgun from CO to CA when you visit? Presuming not a CA 'assault weapon' and no 'large-capacity magazines', no law against it.

I was under the belief that I a CO resident cant bring my firearm with me when I visit CA if its off the roster. The weapon I want to have available is the FNP .45 USG, not the tactical. I really don't see any features that would make it illegal but it does have ambidextrious controls which is good for me th lefty, and I hear it kicks like a 9mm so its nice in case the wife needs it.

I never thought of giving it to her that way, that works! So it is legal for me to have it being its mine from CO and Im a resident in CO? I just worry if I did fully transfer it to her and say I get pulled over and its in my possesion but registered to her I'd get in trouble but then again if Its legal for me to have it there registered to me as long as it only has 10 rounds theres no worries.

I'd love to buy the 15 round version for hunting in CO but I dont believe that I can get a 10 round mag for CA.

Thanks for all the help!

bwiese
06-29-2010, 12:42 PM
I was under the belief that I a CO resident cant bring my firearm with me when I visit CA if its off the roster.

Rostering only affects direct resale of guns by CA FFLs. But FFL-intermediated private party transfers btwn CA residents, inheritance, probate, bequest or other "operation of law" matters, and interfamily transfers between certain lineal relatives all are exempt from Rostering (as well as C&R/antique).

Folks can move to CA with off-Roster handguns as long as they are not AWs and as long as they don't bring in hicap magazines.


The weapon I want to have available is the FNP .45 USG, not the tactical. I really don't see any features that would make it illegal but it does have ambidextrious controls which is good for me th lefty, and I hear it kicks like a 9mm so its nice in case the wife needs it.

As per above, it's fine to bring in even though not Rostered. Just buy some 10rd magazines and don't bring in the hicaps

And make sure it doesn't have a threaded bbl (that triggers AW status).