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Thread: Which one of us is right on this law? (Straw purchase)

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    Which one of us is right on this law? (Straw purchase)

    I'm having a debate with another guy about if it's legal to buy and sell guns with the intent to make a profit without having a FFL. Now page 7 of this defines "engaged in business" pretty clearly. http://www.atf.gov/publications/down...f-p-5300-4.pdf

    I always took that as that you can make the occasional private sale, but can't buy guns with the intent to resell to make a profit.

    The other guy is claiming that you can buy guns to resell as long as it's not your primary source of income. So if someone is doing it to make a few grand a year, this is okay, as long as it's not your main income. He claims, that a buddy of his got cleared by the ATF after they investigated him for this since he wasn't making his "living" off of it.

    Which one of us are right?
    Last edited by hometheaterman; 01-31-2011 at 11:55 PM.

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    Is this the debate I keep seeing come up between two guys on VAGT?

    Sorry I'm of no help.

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    Regular Member ocholsteroc's Avatar
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    Common sence tells me NO you can not buy and resell guns without FFL.

    Question #1 on a form is it? are the actual buyer? NO~you are reselling.

    Not a lawyer!
    Last edited by ocholsteroc; 02-01-2011 at 12:00 AM.
    How come a DUI you can get your driver licence back, which it is a privilege. But if commiting a felon, even something non violent like stealing, you are denied your constitutional rights for the rest of your life?
    If you don't support the Second Amendment to the Constitution, what other parts of the Constitution do you reject?
    More restrictions on guns? how about restrictions on chainsaws and knives?

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    Quote Originally Posted by ocholsteroc View Post
    Common sence tells me NO you can not buy and resell guns without FFL.

    Question #1 on a form is it? are the actual buyer? NO~you are reselling.

    Not a lawyer!
    Meaning like buying from a private party and reselling. Not buying new guns from the dealer.

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    Regular Member ocholsteroc's Avatar
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    Quote Originally Posted by hometheaterman View Post
    Meaning like buying from a private party and reselling. Not buying new guns from the dealer.
    I am talking about from a private sale, If you buy a used gun, do not like it, you can sell it. But if you just BUY a brand new gun from a dealer and just sell it for profit without test firing it/using it, IMO its illgeal, because you are doing so for profit without a FFL.

    I am not a lawyer and do not know anything.

    If person A went to the gun show, bought 10 mosin nagants 91/30's @ $90 each, and sold them all in a private sale for say $120each, he is making a profit with out a FFL. Now if he shot them, and DID NOT LIKE THEM. Then its just a private sale of a gun. But he has the intention of buying for resale without FFL.

    Again not a lawyer.
    Last edited by ocholsteroc; 02-01-2011 at 12:45 AM.
    How come a DUI you can get your driver licence back, which it is a privilege. But if commiting a felon, even something non violent like stealing, you are denied your constitutional rights for the rest of your life?
    If you don't support the Second Amendment to the Constitution, what other parts of the Constitution do you reject?
    More restrictions on guns? how about restrictions on chainsaws and knives?

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    Quote Originally Posted by ocholsteroc View Post
    I am talking about from a private sale, If you buy a used gun, do not like it, you can sell it. But if you just BUY a brand new gun from a dealer and just sell it for profit without test firing it/using it, IMO its illgeal, because you are doing so for profit without a FFL.

    I am not a lawyer and do not know anything.

    If person A went to the gun show, bought 10 mosin nagants 91/30's @ $90 each, and sold them all in a private sale for say $120each, he is making a profit with out a FFL. Now if he shot them, and DID NOT LIKE THEM. Then its just a sale of a gun. But he has the intention of buying for resale without FFL.
    That's basically how I'm interpreting the law.

    The other person seems to believe that you can do this as long as it's not your primary source of income. If it's only income that's not your primary source he says it's fine to do, but I find that hard to believe.

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    Regular Member ocholsteroc's Avatar
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    Quote Originally Posted by hometheaterman View Post
    That's basically how I'm interpreting the law.

    The other person seems to believe that you can do this as long as it's not your primary source of income. If it's only income that's not your primary source he says it's fine to do, but I find that hard to believe.
    I find that hard to believe too.
    Last edited by ocholsteroc; 02-01-2011 at 12:47 AM.
    How come a DUI you can get your driver licence back, which it is a privilege. But if commiting a felon, even something non violent like stealing, you are denied your constitutional rights for the rest of your life?
    If you don't support the Second Amendment to the Constitution, what other parts of the Constitution do you reject?
    More restrictions on guns? how about restrictions on chainsaws and knives?

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    He claims that since it says "livelihood" and profit that you have to sell enough to make a living off of it. So if you just make a few thousand a year, it's not illegal. I'm just trying to figure out which one of us is right, but the more I read, the more I think it's me.

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    Regular Member ocholsteroc's Avatar
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    Quote Originally Posted by hometheaterman View Post
    He claims that since it says "livelihood" and profit that you have to sell enough to make a living off of it. So if you just make a few thousand a year, it's not illegal. I'm just trying to figure out which one of us is right, but the more I read, the more I think it's me.
    I can not find anything on it right now, for some reason I am up late tonight.
    All I know is that, on the form when you buy a gun, it ask are you the buyer or no? and if you put YES then you are going own that gun, if you put NO then you want to resell. Theres nothing wrong with buying a gun, using it for a while, then come to find out you hate it or price for ammo is insane, then want to sell it(thats my case, I have a rifle I can not afford to shoot at $15 a box of ammo of 20rounds, for $25 I can get 100 rounds of shotgun). But buying guns at the gun store/show, to turn around and sell for profit just sounds illgeal to me. You're going have a ton of guns # numbers to you're name.


    Again not lawyer.
    Last edited by ocholsteroc; 02-01-2011 at 12:54 AM.
    How come a DUI you can get your driver licence back, which it is a privilege. But if commiting a felon, even something non violent like stealing, you are denied your constitutional rights for the rest of your life?
    If you don't support the Second Amendment to the Constitution, what other parts of the Constitution do you reject?
    More restrictions on guns? how about restrictions on chainsaws and knives?

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    Quote Originally Posted by ocholsteroc View Post
    All I know is that, on the form when you buy a gun, it ask are you the buyer or no? and if you put YES then you are going own that gun, if you put NO then you want to resell.
    I can't answer the original question, but I can point out that your logic on this particular line of reasoning is flawed.

    When you buy a gun with your own money, then you are the owner.

    The situation you describe entails what you may or may not plan to do with the gun after you are the owner.

    The purpose of this question is to root out straw purchases, not unlicensed gun dealers.

    It is my opinion, which is worthless in the eyes of the law, just like yours... that unless you have a specific "other person" identified at the time of your purchase, to whom you plan to transfer the gun, then you are truthfully able to answer the "are you the buyer" question with a "yes".

    TFred
    Last edited by TFred; 02-01-2011 at 01:43 AM. Reason: Clarify a bit

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    Regular Member ocholsteroc's Avatar
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    Quote Originally Posted by TFred View Post
    I can't answer the original question, but I can point out that your logic on this particular line of reasoning is flawed.
    Originally Posted by ocholsteroc
    All I know is that, on the form when you buy a gun, it ask are you the buyer or no? and if you put YES then you are going own that gun, if you put NO then you want to resell.


    On the gun form, it asks you, are you the buyer? well that means to me, you are going own it and not resell for profit, if you put no then you are NOT the buyer, and wanting to resell. Sorry little confusing.
    How come a DUI you can get your driver licence back, which it is a privilege. But if commiting a felon, even something non violent like stealing, you are denied your constitutional rights for the rest of your life?
    If you don't support the Second Amendment to the Constitution, what other parts of the Constitution do you reject?
    More restrictions on guns? how about restrictions on chainsaws and knives?

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    Quote Originally Posted by hometheaterman View Post
    That's basically how I'm interpreting the law.

    The other person seems to believe that you can do this as long as it's not your primary source of income. If it's only income that's not your primary source he says it's fine to do, but I find that hard to believe.
    Ask him if I make $1,000,000 a year at my day job, and make $500,000 selling guns on the side without a license if that's ok. It's not my primary source of income, it's just a little walking around money... I'm pretty sure the ATF would come down hard on a situation like that.

    But I also think it is OK to occasionally buy a gun solely for resale. Think about it. If you go to an estate auction and they've got a rare gun that's worth $10,000. You don't want it for yourself, but nobody else realizes it's valuable, so you buy it for $500. Is it illegal to now sell that gun at a profit?

    There's definitely a fine line there somewhere in between. And if you are anywhere close to that line you better get your FFL before you get a federally funded vacation.

    IANAL

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    Quote Originally Posted by vt357 View Post
    Ask him if I make $1,000,000 a year at my day job, and make $500,000 selling guns on the side without a license if that's ok. It's not my primary source of income, it's just a little walking around money... I'm pretty sure the ATF would come down hard on a situation like that.

    But I also think it is OK to occasionally buy a gun solely for resale. Think about it. If you go to an estate auction and they've got a rare gun that's worth $10,000. You don't want it for yourself, but nobody else realizes it's valuable, so you buy it for $500. Is it illegal to now sell that gun at a profit?

    There's definitely a fine line there somewhere in between. And if you are anywhere close to that line you better get your FFL before you get a federally funded vacation.

    IANAL
    I was going to use a similar example myself.

    You can't even use the "did you ever shoot it" criteria, because not everyone buys guns for shooting. Some people actually collect guns, and might buy a firearm purely for its collector's value, and then later sell it again at a profit for a variety of reasons. For many such guns, the value decreases if you do fire it.

    There's no clear line, and so it would likely boil down to how good is your lawyer if they ever come after you.
    Alma 43:47 - "And again, the Lord has said that: Ye shall defend your families even unto bloodshed...."
    Self defense isn't just a good idea, it's a commandment.

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    Quote Originally Posted by ocholsteroc View Post
    Originally Posted by ocholsteroc
    All I know is that, on the form when you buy a gun, it ask are you the buyer or no? and if you put YES then you are going own that gun, if you put NO then you want to resell.


    On the gun form, it asks you, are you the buyer? well that means to me, you are going own it and not resell for profit, if you put no then you are NOT the buyer, and wanting to resell. Sorry little confusing.
    You are free to think whatever you want. However, you are clearly adding new meaning to the word "buy" that does not exist in any other context.

    Unless you have some reference that clearly supports your new definition of "buy" to mean what you are saying ("if you ever intend to dispose of the item, then you are not 'buying' it"), you should probably not repeat it very much, or someone is going to call you on it.

    TFred

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    I would also think it depends on the quanity of gun being purchased.
    example: if i go to a gunshow and buy 5 Glock 26s from Trader Jerry and then next week im at the gunshow
    trying to sell the same 5 Glocks then i would think that is illegal.

    However if you use the example of the estate sale and buy a gun a low price because someone does not know
    what they have and resell it that would be ok.

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    Quote Originally Posted by ocholsteroc View Post
    I am talking about from a private sale, If you buy a used gun, do not like it, you can sell it. But if you just BUY a brand new gun from a dealer and just sell it for profit without test firing it/using it, IMO its illgeal, because you are doing so for profit without a FFL.

    I am not a lawyer and do not know anything.

    If person A went to the gun show, bought 10 mosin nagants 91/30's @ $90 each, and sold them all in a private sale for say $120each, he is making a profit with out a FFL. Now if he shot them, and DID NOT LIKE THEM. Then its just a private sale of a gun. But he has the intention of buying for resale without FFL.

    Again not a lawyer.
    Collectors buy sell and trade with the intent of improving their collection. Where is the collectors line?
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Quote Originally Posted by ocholsteroc View Post
    Originally Posted by ocholsteroc
    All I know is that, on the form when you buy a gun, it ask are you the buyer or no? and if you put YES then you are going own that gun, if you put NO then you want to resell.


    On the gun form, it asks you, are you the buyer? well that means to me, you are going own it and not resell for profit, if you put no then you are NOT the buyer, and wanting to resell. Sorry little confusing.
    As already mentioned, if you are buying the firearm, you ARE the buyer. EVEN IF YOU MAY RESELL.

    If someone else gives you money to purchase a firearm, because they are not legally able to, you are not the buyer.


    Also: http://forum.opencarry.org/forums/sh...aler-s-license
    "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." Benjamin Franklin

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    Quote Originally Posted by tkd2006 View Post
    I would also think it depends on the quanity of gun being purchased.
    example: if i go to a gunshow and buy 5 Glock 26s from Trader Jerry and then next week im at the gunshow
    trying to sell the same 5 Glocks then i would think that is illegal.
    I find that to be an unsupportable think.
    "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." Benjamin Franklin

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    Quote Originally Posted by tkd2006 View Post
    I would also think it depends on the quanity of gun being purchased.
    example: if i go to a gunshow and buy 5 Glock 26s from Trader Jerry and then next week im at the gunshow
    trying to sell the same 5 Glocks then i would think that is illegal.
    Bought them for placement throughout your jewelry store. Other employees that you trusted them to did not like the grip length and proved terribly inefficient with them at the range. Trade in value in returning them to Trader Jerry's was too low.

    What about the people that bought 10 AR's in all the Obama election frenzy then sold 8 when it calmed down?
    Last edited by Curtis; 02-01-2011 at 10:12 PM.

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    Seeral years ago two little girls set up a lemonade stand in their backyard that adjoined a golf course where a PGA tournament was being held. With nothing better to do the TV folks started focusing on how much business the two little girls were doing as it was a hot week. They started out doing a couple hundred dollars worth of business for the first day. On Saturday the little stand did around $3,000 in business. Things were going great for the two little girls and their lemonade stand in their back yard. Sunday morning when they got ready to set up the Tax man was waiting on them.

    The moral of this story is that as long as you buy/sell a gun here and there they aren't going to worry with you but get to doing it too much and they are going to want their cut. Technically the cut off line is zero but there is no line on when they will try to enforce it. Show up at a gun show with a table full of new guns and a sign saying private sale; you can expect a visit.

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    Quote Originally Posted by PT111 View Post
    Seeral years ago two little girls set up a lemonade stand in their backyard that adjoined a golf course where a PGA tournament was being held. With nothing better to do the TV folks started focusing on how much business the two little girls were doing as it was a hot week. They started out doing a couple hundred dollars worth of business for the first day. On Saturday the little stand did around $3,000 in business. Things were going great for the two little girls and their lemonade stand in their back yard. Sunday morning when they got ready to set up the Tax man was waiting on them.

    The moral of this story is that as long as you buy/sell a gun here and there they aren't going to worry with you but get to doing it too much and they are going to want their cut. Technically the cut off line is zero but there is no line on when they will try to enforce it. Show up at a gun show with a table full of new guns and a sign saying private sale; you can expect a visit.
    Great point, makes sense though. The ATF is an arm of the Treasury department - got to keep bringing in those taxes.

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    Quote Originally Posted by wrightme View Post
    As already mentioned, if you are buying the firearm, you ARE the buyer. EVEN IF YOU MAY RESELL.

    If someone else gives you money to purchase a firearm, because they are not legally able to, you are not the buyer.
    Close, but not quite.

    If you are the actual purchaser, well, then... you are.

    If you're not the "actual purchaser, it's just as illegal for your FFL/CHL/Police Chaplain/Priest-who-never-had-a-speeding-ticket brother to give you cash and ask you to pick up a particular gun for him (because he can't go, being busy saving puppies and children), as it is to do the same thing for your illegal immigrant/multiple felon/domestic abuser neighbor.

    The actual purchaser's legal standing to purchase the gun has no bearing on whether or not it's a straw purchase.

    You may purchase a gun from an FFL if you are the actual purchaser, meaning you're not purchasing it on behalf of someone else. You may also purchase a gun from an FFL as a bona fide gift for someone else.

    To be a legitimate gift, it has to be given in that spirit. You can tell someone, "Hey, I'd like to buy you a gun for your birthday; what would you like?" That person can even accompany you to the store and pick it out. Or, it can be a complete surprise. It can be an immediate family member, or a casual acquaintance, or even a total stranger if you're feeling altruistic. The only thing that matters is that it's a bona fide gift, purchased by you (with your funds), for someone else as a gift.

    Of course, you may not knowingly provide a firearm or ammunition to a prohibited person, whether as a gift or otherwise.

    Another thing: there is no minimum amount of time required before you can re-sell a gun. Say you're strolling the aisles of some huge gun show. You spot something that you know to be a bargain, come to terms with the seller, exchange cash for gun, and go merrily along your way with your new KaBlammo K1000 in hand.

    A few rows later, you run across a booth with a sign saying, "Wanted: KaBlammo K1000, top dollar paid!" The vendor is offering you a healthy profit, so you sell. This is not "engaged in the business." You didn't buy with the intent to resell, and you didn't do so for your livelihood.

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    Quote Originally Posted by KBCraig View Post
    Close, but not quite.

    If you are the actual purchaser, well, then... you are.
    Sigh.

    When you go to a gunshop, and use your funds to purchase a firearm, you ARE the actual purchaser.

    Quote Originally Posted by KBCraig
    If you're not the "actual purchaser, it's just as illegal for your FFL/CHL/Police Chaplain/Priest-who-never-had-a-speeding-ticket brother to give you cash and ask you to pick up a particular gun for him (because he can't go, being busy saving puppies and children), as it is to do the same thing for your illegal immigrant/multiple felon/domestic abuser neighbor.

    The actual purchaser's legal standing to purchase the gun has no bearing on whether or not it's a straw purchase.

    You may purchase a gun from an FFL if you are the actual purchaser, meaning you're not purchasing it on behalf of someone else. You may also purchase a gun from an FFL as a bona fide gift for someone else.

    To be a legitimate gift, it has to be given in that spirit. You can tell someone, "Hey, I'd like to buy you a gun for your birthday; what would you like?" That person can even accompany you to the store and pick it out. Or, it can be a complete surprise. It can be an immediate family member, or a casual acquaintance, or even a total stranger if you're feeling altruistic. The only thing that matters is that it's a bona fide gift, purchased by you (with your funds), for someone else as a gift.

    Of course, you may not knowingly provide a firearm or ammunition to a prohibited person, whether as a gift or otherwise.

    Another thing: there is no minimum amount of time required before you can re-sell a gun. Say you're strolling the aisles of some huge gun show. You spot something that you know to be a bargain, come to terms with the seller, exchange cash for gun, and go merrily along your way with your new KaBlammo K1000 in hand.

    A few rows later, you run across a booth with a sign saying, "Wanted: KaBlammo K1000, top dollar paid!" The vendor is offering you a healthy profit, so you sell. This is not "engaged in the business." You didn't buy with the intent to resell, and you didn't do so for your livelihood.

    Straw purchase is when a person who is legally able to purchase a firearm knowingly purchases a firearm for a third party who is either a prohibited person or desires to not have his name on the form.

    I can purchase a firearm with the intent to gift it to someone not prohibited. I am still the actual purchaser.

    If I know someone has been looking for a certain firearm at a certain price, and I find a deal at a gun show on that firearm, and I purchase it, I am not making a straw purchase, and I am the actual purchaser, even if I know I will attempt to sell it to the other person at a certain price.
    Last edited by wrightme; 02-02-2011 at 01:48 PM.
    "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." Benjamin Franklin

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    Regular Member TFred's Avatar
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    This issue was hashed out quite a bit on an earlier thread, and probably more than just one.

    While it's not a definitive answer, it seems significant to me that the sample scenarios provided in the instructions for Form 4473 seem to hinge on whether the purchaser is using their own money (legal), or the money provide by another person (not legal). Question 11(a) on the form does not ask anything about your intent to sell.

    http://www.atf.gov/forms/download/atf-f-4473.pdf

    I agree with the earlier posters' assessment, if it becomes obvious that you are conducting business, then you are probably conducting business.

    In my personal opinion, I have no doubt that the ATF leaves these definitions ambiguous on purpose to dissuade the more timid law-abiding citizens from conducting activities that are perfectly legal, but that the ATF does not like.

    TFred

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    Regular Member TFred's Avatar
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    Quote Originally Posted by wrightme View Post
    Straw purchase is when a person who is legally able to purchase a firearm knowingly purchases a firearm for a third party who is either a prohibited person or desires to not have his name on the form.
    I think the general consensus is that ATF doesn't care anything at all about the part you have indicated in bold. If you buy a gun for a third party, that is what they consider a Straw Purchase, even if the person is absolutely legal.

    Consider this example: Joe is your best friend and he wants to buy that one in a million gun. There are two gun shows this weekend, and you are going to be in one town, but Joe is going to be in the other. If Joe fronts you the cash, and you find that gun at your gun show, and you buy it for Joe, I believe ATF would consider that a Straw Purchase, even though Joe is neither prohibited, nor does he care anything about having his "name on the form."

    ETA: In getting back to the OP here... if in this example, you know that your best friend Joe is looking for that one in a million gun, and you happen to run across it at a gun show, and you buy it with your own money, knowing that Joe will be very happy to buy it from you when you see him next... I don't believe that is a Straw Purchase, according to the understanding I gain from reading the sample questions on the Form 4473, and other discussions on the subject.

    TFred
    Last edited by TFred; 02-02-2011 at 02:03 PM. Reason: Added ETA

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