Question on inter-spousal transfer

[cosmos7]

Not really sure this is the right place to ask, but honestly not sure where else would be more appropriate. Wife is at school out-of-state for the next year or two. I'm assuming as a resident of that state she can buy whatever is legal there. Assuming no >10rd magazines come with the gun and assuming it's not classified as a CA AW, is there anything preventing her from transferring to me? Inter-spousal transfers look like they don't require a FFL and bypass the handgun roster. Am I missing something?

[SkyHawk]

Transfers between residents of different states require a FFL, no exceptions for family or spouse. 18 USC 922(a)(5). Felonies for both of you if you don't use a FFL.

If you want to play the 'but she is also a resident of CA' game, then CA PC27875 says she cannot bring back firearms acquired after Jan 1 2015, without having them first shipped to a CA FFL for transfer to herself, and that type of transfer is not roster exempt. Felony if she brings back a handgun she acquires out of state, if she is a CA resident.

So you must use a FFL. It will be a dealer transfer, subject to 1-in-30 rules and a dealer transfer fee of whatever the dealer wants to charge. It is roster exempt. Have her ship it to a CA FFL, after you find one who knows the roster exemption rule for intra family, and who doesn't charge too much for the transfer fee.

If she ships it herself, makes sure she follows the law and carrier policy for handgun shipments. If she has a FFL ship it, they must use the CA DOJ CFLC and get approval first. This is a good ship service for private parties http://www.shipmygun.com

If she is not a CA resident, it may be easier for her to bring it during a visit, if you find a FFL who will accept walk in transfers from non-resident non-licensees.

[cosmos7]

That's some good information... thanks! What makes the determination for residency? All I can really find is if you intend to make it home, which is pretty vague. I mean I own a home here, we will be renting a place out there. We will both be traveling back and forth for sure...

[Librarian]

You're trying to figure out the mess that is the combination of California and Federal gun and residency laws.

You might want to consult a lawyer about residency.

My simple rule of thumb (which may not help you at all): folks who claim multi-state residency must eventually decide which state is their residence for tax purposes - in CA, it's choosing to file a 540 or a 540-NR. Whichever state you file resident taxes in (and, by inference, non-resident taxes for all the other states) is probably your state of residence.

But beyond that, discussing your circumstances on a public web site is likely to be a bad idea, and better left to that lawyer ...

[cosmos7]

Well my question wasn't really about taxes or trying to tackle multi-residency... as a student she makes very little so it doesn't really matter. My question was more about making sure that she can't be interpreted as a Californian resident, and thus automatically committing a crime by entering the state with a firearm purchased elsewhere.

[Librarian]

Well my question wasn't really about taxes or trying to tackle multi-residency... as a student she makes very little so it doesn't really matter. My question was more about making sure that she can't be interpreted as a Californian resident, and thus automatically committing a crime by entering the state with a firearm purchased elsewhere.

The tax thing is a rule-of-thumb for someone to decide residency.

Pay resident taxes to a state, that's probably your residence.

Likely, if you file CA-resident, and use a joint return, then wife would be a resident too.

[jeremiah12]

It may not be very complicated. Where did your wife live before she enrolled in school? If it was CA, then she very likely is considered a CA resident.

What does the college consider her, an out of state or in state student for tuition purposes? If out of state, then she is definitely still a CA resident.

Does she plan to move back to CA after she completes college, then she most definitely is a CA resident if she was one before leaving for college.

If you are filing a joint tax return to CA then she is a CA resident. You will also get to learn the joys of our states love of taxing everything. Any money she earns out of state is taxed by CA. It is also subject to being taxed by the state she earned the money in, depending on their tax laws. It would be best to hire speak with a tax attorney.

While at college, the ATF says she is a resident of that state for gun buying purposes. If she gets a State ID card for that state, which many states allow even if you keep a CA DL. In the past, you could bring it back to CA and file a form with the DOJ and send in $19. That is no longer allowed.

It now has to go through an FFL and be on the roster. There is no roster exemption like there is for interstate, interfamilial transfers.

I was in this situation for the 6 years I went to school in Oregon to earn my PhD while my wife remained in CA. My research work was in CA so I spent half my time here and she could not find a job there that could come close to the income she was earning here.

The first time we filed taxes we were hit hard as we learned all of this. My Oregon income was taxed by Oregon and CA. If we had gotten a divorce, we would have saved a lot of money in taxes. More proof our overlords do not care about families.

[fiddletown]

...You might want to consult a lawyer about residency. ...

That is the best idea.

State laws, in California as well as other States, define the concepts of residence and domicile in fairly general terms, e. g., where one intends to make his home, or his permanent place of residence, or where he intends to return when temporarily absent, or principal place of residence, or words or phrases of similar import. But the real issue is the facts or factors which will be needed to establish the definition is satisfied.

So let's look at Vehicle Code 12505, for example:

12505.

(a)

It can also depend on one's purpose for claiming residency or non-residency. If it's a matter of being a California resident for the purposes of being eligible for resident tuition at the University of California, see here:

Establishing physical presence and intent

To meet these requirements, you must be continuously physically present in California for more than one year (366 days) immediately prior to the residence determination date (generally the first day of classes) and intend to make California your home permanently. You can demonstrate your intention to stay in California by relinquishing legal ties to your former state and establishing legal ties to California.

Here are some ways you can establish intent:

If the question is California residency for tax purposes, see here (pg 4):
And under federal law for the purposes of the Gun Control Act of 1968, "State of Residence" is defined at 27 CFR 478.11 as follows:

State of residence. The State in which an individual resides. An individual resides in a State if he or she is present in a State with the intention of making a home in that State. If an individual is on active duty as a member of the Armed Forces, the individual's State of residence is the State in which his or her permanent duty station is located, as stated in 18 U.S.C. 921(b). The following are examples that illustrate this definition:

Example 1.

A maintains a home in State X. A travels to State Y on a hunting, fishing, business, or other type of trip. A does not become a resident of State Y by reason of such trip.

Example 2.

A maintains a home in State X and a home in State Y. A resides in State X except for weekends or the summer months of the year and in State Y for the weekends or the summer months of the year. During the time that A actually resides in State X, A is a resident of State X, and during the time that A actually resides in State Y, A is a resident of State Y.

Example 3.

A, an alien, travels to the United States on a three-week vacation to State X. A does not have a state of residence in State X because A does not have the intention of making a home in State X while on vacation. This is true regardless of the length of the vacation.

Example 4.

A, an alien, travels to the United States to work for three years in State X. A rents a home in State X, moves his personal possessions into the home, and his family resides with him in the home. A intends to reside in State X during the 3-year period of his employment. A is a resident of State X.

[Chewy65]

In addition to all the other problems that have been pointed out, this looks like an illegal "straw purchase". One person cannot purchase a firearm from a dealer for another, since they are not the true transferee/buyer. They are committing perjury. There is an exception if it is being purchased as a gift. The gift rule does not apply if the ultimate buyer pays any of the cost of purchase. If the funds are community property, you are paying the costs even if it is a "gift" for you.