RE: This 2 day / 1200 rd /$450 private Rifle Instruction class that a John Burke of Brooklyn/Long Beach NY has arraigned for, to be held on Long Island at the Brookhaven Public Range on December 28/29;

         Dear Mr. Vickers,
A few points you should be made aware of before you facilitate: A Semi-auto Assault Weapon configured with the proscribed features that limit it’s constructive possession to those entities listed in NYS Penal Law who are afforded the exemptions from Prohibition under §265.20, cannot be handles by civilians at any such event. Don’t bring yours because this event is not being held at a PD range. You would be exposed to a whole host of legal ramifications.

Although such an event (Training-Education) is not subject to the requirements for the collection of NYS sales tax for services, the vendor MUST be a registered business entity possessing a NYS Certificate of Authority as per Article 28 and 29 of the NYS Tax Law. As I’ve been informed, Mr. Burke is handling the money and is not a formal promoter and does not have all the required tax clearances. If a second party is the arranger of the event, the payment of any fees or reimbursements made to the actual Training contractor must be reported to the state of New York Department of Taxation and Finance. It appears that he is restricting payments for the class to CASH only. The training contractor, if payment is made within the confines of the state of New York must be also registered with the New York State Department of Taxation and Finance. Get your money up front, sent to your office and don’t wait until you get here to New York. Please don’t let cash change hands here.

The Town of Brookhaven Range operator (a contracted private entity) is required to report all income from the usage of the facility (even on days they are closed) to the township. The non-reporting of income from range operations can render said contract as null and void as well as subject the range operator/contractor to additional legal and financial penalties. The Town’s Parks & Recreations Director knows nothing of this class and was unaware that someone would be using the facility during those 2 days when it’s supposed to be closed.

It has also come to my attention that an out of state entity may be in attendance possessing several samples of the H&K 416 Assault rifles as well as a Bushmaster ACR. The legal requirements for any entity regarding their constructive possession of a Machine Gun, is highly restrictive, whether they are domiciled within the state of New York or a foreign entity (outside the state of New York). The possession of a Federal Firearms License does not relegate NYS laws and regulations. Don’t bring in anything that could be construed as being illegal in a civilian’s hands under state law. A commercial entity, licensed as an FFL, who is a Special Occupation Taxpayer Class 1, may transfer inventory (Machine Guns and NYS-defined Semi-Auto [LE] Assault Weapons) to an agent, employee or representative, for bona-fide business purposes.

New York State doesn’t recognize an out-of-state FFL. They may not however constructively possess them where state law prohibits such. The 1986 FOPA (Firearms Owner’s Protection Act) only covers uninterrupted transport through NYS, not possession while teaching a training course. You’ve probably heard of some of the misinterpretations of state law by law enforcement here in New York and I’m sure you don’t need the hassle. Under NYS Penal Law, a private citizen, regardless of their state of residence, is not exempt from the prohibitions of possession of machine guns. NYS Penal Law §265.20 listed exempt entities can be further restricted by local laws and/ or their agency’s Rules and Procedures. Please don’t bring any buzz guns. The amount of attention drawn by full-auto fire on a Town range will bring undue political heat down upon legal gun owners of New York.

To legally possess a machine gun in New York State, the commercial entity MUST be licensed as a FFL Type 7 or Type 10 as well as being a Special Occupation Taxpayer Class 2. In addition, the entity MUST be registered with the US Department of State as required under ITAR. Under New York State law, the entity possessing machine guns MUST ALSO be a corporation, domiciled within the state, possessing a “New York State Firearms Manufacturer’s License” administered by the New York State Police.

For a Semi-Automatic Assault Weapon (LE), the possessor/factory representative of a NYS licensed manufacturer MUST also have a “pistol license” issued by the state of New York. Under NYS law, a SAW is defined as a “firearm” along with handguns, with regard to enhancement of an underlying criminal charge. Please don’t bring a pistol into NYS.

Examples of non-compliance by firearms manufacturers from outside the state of New York:

• John Visintini, sales rep for Sturm, Ruger was arrested by the Buffalo PD for illegally possessing 2 Ruger AC556 Machine Guns even though he was a factory representative bearing official notice from the manufacturer stating such. The weapons were seized and at the expense to Ruger, shipped back to the company. Mr. Visintini was subsequently released on a personal recognizance bond.
• Michael Kolozvary, sales rep for Smith & Wesson cannot possess factory sales samples without them being listed on his NYS Pistol Permit. He also cannot possess select-fire versions of the S&W M&P-15, and instead, has them shipped to himself from S&W; care of the agency where he will be demonstrating said weapons at. He has no legal right under NYS Penal Law to possess machine guns even though he works for S&W.
• Former employees of the HK-Training Division, John Zamrock, David Buchannan and Joe Tuzzolino understood the state restrictions and would only travel into the state of New York upon official invite (on letterhead) issued from a Law enforcement agency. They could only travel un-interrupted directly to and directly from the host law enforcement agency.

Additionally, if Mr. Burke is the organizer this “GUN SHOW” and has assumed the position of “GUN SHOW Promoter”, all activities occurring on, in or around the event MUST comply with all municipal, state and federal laws. He is criminally liable for any and all illegal activities occurring under his purview. I had contacted the offices of several entities as listed below and tried to solicit clearances for your course, but at this time, it appears that none want the attention. They all asked for a Cc: to obviously CYA. All I can ask is that you pass on participating in this particular event. If you need help in making other arraignments for a course at a proper venue here in New York, please don’t hesitate to call.

Very Truly Yours,
John Parmerton, President
Applied Tactical Technologies, Inc.
Cc: Richard Dormer, Police Commissioner, Suffolk County Police Department
Walter Heesch, Major, Troop Commander, Troop L, NYSP
Joseph DeMaria, Inv. NYSP-Gun Investigation Unit
Edward Morris, Commissioner, Town of Brookhaven, Dept. of Parks, Recreation, Sports & Cultural Resources
Jamie Woodward, Acting Commissioner, NYS Dept. of Taxation and Finance

______________________________________________________________________________________________________________________

The country is EBR (Evil Black Rifle) crazy and New York is no different. The problem is that manufacturers of AR-15 style rifles charge more for ones assembled without the “EVIL” features that would “restrict” or “prohibit” Joe Sixpack from Ronkonkoma from buying and possessing.  Bushmaster makes their M4 Type “Post-Ban” Carbine PCWA3X 14M4IZ & PCWA2X 14M4IZ assembled at the factory in a fashion that meets their definition of a New York-compliant non-”Semi-Auto Assault Weapon”. These rifles retail for $1265 and have a swedged-on muzzle brake installed onto a specially manufactured non-threaded barrel, and a receiver extension tube manufactured  without the 4-pos or 6-pos track. The buttstock is held in permanent place with an allen-head bolt.

So how do you put extra cash in your profit pocket? Well, you don’t order NY-compliant rifles from the manufacturers; you order 47-state versions (NY-non-compliant / L.E.) and do the “conversion” into a NY-compliant version yourself. 47-state versions are cheaper by almost $500 in both retail as well as wholesale, and thanks to a great mis-understanding over what constitutes a civilian-legal rifle, this questionable business practice is making a lot of NY FFLs rich. Who provided the method of “conversion” to these dealers? Is there a written set of procedures that tell’s the NY FFL on how to do it?

In fairness, there has never been a formal memo released from the NYS Police on the subject and it is rumored that in one exchange with a questioning dealer, the Trooper so questioned answered, “don’t ask because you won’t like the answer”. So blissful ignorance abounds. But here’s the rub; a manufacturer can make a “restricted” version or a NY-compliant version and legally ship either into NYS, but only to a FFL who also holds a NYS ”Dealer in Firearms” license. The AR-15 in all it’s forms has been categorized (as per the Penal Law) as a “FIREARM” which means in NYS, an EBR and it’s lower receiver, and even the NY-compliant version, requires that the FFL be a NYS ”Dealer” also. Most distributors and other dealers are unaware of this legal fact. A FFL who only deals in rifles, continues to receive AR-15 rifles thanks to the lack of knowledge regarding the law as well as a lack of enforcement.

 So you’re a FFL and maybe you have a NYS ”Dealer’s” license too. You order in a bunch of 47-state legal Rock River Arms AR15s and they cost you $835 a piece. You take a couple of roll pins and drill a few holes and in 10 minutes, a NY-compliant rifle. That rifle placed on the shelf of one of your two gun stores can now command $1400. You say that he’s entitled to make a profit? Yes he is, but….

Read this about Federal Excise Tax on firearms and who has to pay it:

Internal Revenue Service
Revenue Ruling
Rev. Rul. 64-202
1964-2 C.B. 431

IRS Headnote

A gunsmith who buys used military-type firearms and performs various operations thereon, resulting in the production of custom-type firearms which are considered new and different articles, is the `manufacturer’ of the custom-type firearms for purposes of the manufacturers excise tax. Accordingly, the gunsmith’s sales of such firearms are subject to the tax imposed by section 4181 of the Internal Revenue Code of 1954.

Rev. Rul. 64-202

Advice has been requested whether liability for the manufacturers excise tax on firearms, imposed by section 4181 of the Internal Revenue Code of 1954, is incurred with respect to the sale of firearms produced under the circumstances set forth below.

A gunsmith buys used military-type firearms. He discards the stocks, sights, and trigger guards and uses only the barrels and actions in making custom-type firearms. The total process involved includes adding a custom-made stock, cutting down the barrel, bluing the barrel and action, altering and polishing the bolt, and replacing the trigger guard and sight. In some instances, telescopic sights are installed.

Section 4181 of the Code imposes a tax upon the sale by the manufacturer, producer, or importer of pistols, revolvers, and other firearms.

Section 316.4(a) of Regulations 46, made applicable to the 1954 Code by Treasury Decision 6091, C.B. 1954-2, 47, provides that the term `manufacturer’ includes a person who produces a taxable article from scrap, salvage, or junk material, as well as from new or raw material, (1) by processing, manipulating, or changing the form of an article, or (2) by combining or assembling two or more articles.

The total process performed by the gunsmith in the instant case constitutes a manufacturing process the result of which is the production of custom-type firearms different from the used firearms acquired by the gunsmith. Accordingly, the gunsmith is the `manufacturer’ of such firearms within the meaning of the regulations.

Therefore, it is held that the gunsmith’s sales of the custom-type firearms are subject to the manufacturers excise tax imposed by section 4181 of the Code. See Revenue Ruling 58-586, C.B. 1958-2, 806, which relates to the excise tax consequences of the processing of firearms under various other circumstances.

OK, you might say that those Rock River rifles were “New” and not used rifles but read paragraph 4 & 5 one more time.
So the dealer needs to also be a gunsmith to “materially” “change the form” of the firearm. But he is concidered to be a “manufacturer” under the federal tax code and therefore has to hold an FFL as a “manufacturer” and not just a dealer. Why is that important? Because he has to file an FET tax return every year disclosing the number of “firearms” he “produces” as oppose to just purchasing and reselling. He has incured a “Tax Liability” as per  “gunsmith’s sales of the custom-type firearms are subject to the manufacturers excise tax”.

But what about the 50-gun exemption? Yes that’s true and here is the ATF’s  Ruling on the subject:

To: Manufacturers, producers and importers of firearms

What is the purpose of this information sheet?

This information sheet announces the recently enacted amendment to section 4182 of the Internal Revenue Code of 1986 (IRC), 26 U.S.C. 4182, to provide an exemption from the firearms and ammunition excise tax (FAET) for any pistol, revolver, or firearm (article) if it was manufactured, produced, or imported by a person who manufacturers, produces, or imports less than an aggregate of 50 of such articles during a calendar year.

What is the authority for this FAET exemption?

Section 4181 of the IRC (26 U.S.C. 4181) imposes an excise tax on the sale or taxable use of firearms, shells and cartridges by a manufacturer, producer, or importer of these articles. Section 4182 of the IRC provides for certain exemptions from this tax. Prior to October 1, 2005, only sales to the Department of Defense and Coast Guard (where the purchase is made with funds appropriated for the military department) and transactions where the National Firearms Act Transfer Tax (26 U.S.C. 5811) has been paid were exempt from the tax.

Recently, the President signed into law the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (Public Law 109–59, 119 Stat. 1144). This act amends section 4182 of the IRC by adding a provision that exempts from the tax any pistol, revolver, or firearm if it was manufactured, produced, or imported by a person who manufactures, produces, or imports less than an aggregate of 50 of such articles during the calendar year.

Who qualifies for this exemption?

Whether a manufacturer, importer, or producer qualifies for this exemption is determined by the number of firearms manufactured, produced and imported on a calendar year basis (January 1 – December 31).

For example, if “Company A” manufactures 20 firearms in a calendar year, no FAET is due upon the sale or taxable use of those 20 firearms. However, if “Company A” manufactures 55 firearms in a calendar year, then FAET is due upon the sale or taxable use of any of those 55 firearms.

The amendment also provides that all persons who are a part of a controlled group under 26 U.S.C. 1563 will be treated as one taxpayer for purposes of this exemption. It should be noted that this amendment does not apply to shells and cartridges.

When is this change effective?

The new exemption went into effect on October 1, 2005. Since FAET is paid quarterly, this corresponded to the beginning of the new tax quarter (October 1 through December 31, 2005). Further, this exemption has prospective application in that it has no effect on the tax liability of a manufacturer, producer, or importer prior to October 1, 2005.

If I manufacture, produce, or import 50 or more firearms during the calendar year, would I be liable for FAET on the first 49 firearms, as well as all subsequent firearms manufactured, produced, or imported for the remainder of the calendar year (even though I did not collect or pay the tax to the Alcohol and Tobacco Tax and Trade Bureau (TTB))?

Yes, you would owe TTB the FAET on the first 49 firearms that you sold or put to a taxable use whether or not you collected the tax from your customers upon the sale or taxable use of these firearms. This is due to the fact that the exemption applies only if you manufacture, produce, or import less than an aggregate of 50 firearms during the calendar year.

Consequently, you would owe FAET on the first 49 firearms sold or put to a taxable use, as well as on all subsequent firearms manufactured, produced, or imported for the remainder of the calendar year, regardless of when they are sold or put to a taxable use. Each calendar year stands alone for purposes of applying the 50 firearms exemption rule.

If I manufacture, produce, or import less than 50 firearms during the calendar year, would I be liable for FAET on those firearms if I sold them in another calendar year?

No, you would not owe FAET on less than 50 firearms manufactured, produced, or imported during a calendar year regardless of when you sell them.

For example, say “Company B” manufactures 20 firearms in calendar year 2006 but does not sell any of them in calendar year 2006. “Company B” then manufactures 40 firearms in calendar year 2007 and sells all 60 firearms (the 20 manufactured in 2006 plus the 40 manufactured in 2007) in 2007. “Company B” would not owe tax on the 60 firearms sold in 2007 since “Company B” only manufactured 20 of those firearms in calendar year 2006 and the other 40 in calendar year 2007. Once again, each calendar year stands alone.

Exemptions at a glance.

Exemptions from Federal Firearms and Ammunition Excise Taxes (FAET)

Type of Exemption 26 U.S.C. 4182

(Before October 1, 2005)

26 U.S.C. 4182

(After October 1, 2005)

26 U.S.C. 4182(a) Transactions where the National Firearms Act (NFA) Transfer Tax has been paid.

Are 26 U.S.C. 4182(b) Firearms, shells and cartridges sold to the Department of Defense and Coast Guard (purchased with funds appropriated for the military department).

exempt from FAET Are exempt from FAET Are 26 U.S.C. 4182(c) Any pistol, revolver, or firearm (but not shells or cartridges) if it was manufactured, produced, or imported by a person who manufactures, produces, or imports less than an aggregate of 50 of such articles during the calendar year.

If you have any questions regarding FAET exemptions, please contact:

Alcohol and Tobacco Tax and Trade Bureau National Revenue Center Firearms and Ammunition Excise Tax (FAET) Group

8002 Federal Office Building 550 Main Street Cincinnati, OH 45202–5215

Toll-free telephone number: 1-877-882-3277 Direct telephone number: (513) 684-3817 Fax Number: (513) 684-2252 E-mail:

tbfaet@ttb.treas.gov

But do you see anywhere the words “no tax returns need to be filed”??

So that dealer we were talking about who was buying all those 47-state legal rifles and performing the NY-compliance “Conversions” on his inventory needs to be a “manufacturer” and file FET tax returns, and if he sold more than 50 of those “converted” rifles in a year, he is liable for an 11% FET tax per rifle for all of them.

Ouch.

The attorney for the defendant wanted an expert opinion of the rifle’s status under NY’s revised definitions of what a “Semi-Automatic Assault Weapon” (SAW) and the enhancement of a criminal act while so armed. As per the ATF back when the federal Assault Weapon law was still in effect (Public Law 103-322 Sept 13, 1994), regarding overall barrel length to determine whether a rifle is an NFA regulated Short Barrel Rifle or not. A Short-Barrel Rifle (SBR) is one where the barrel measures from the back of the chamber to the muzzle, less than 16″.       

In an opinion letter issued by Edward M. Owen, Jr. Chief, Firearms Technology Branch, back on 3/31/98, regardless of the number of sub-components used to assemble the complete barrel (short barrel under 16″ and a pinned/welded muzzle device), for the purposes of overall measurement, the assembled length for the example barrel is a non-NFA SBR 16″.       

 JUN 18 1998 F:FPD:FTB:RAT 3311    

 Dear Mr. :    

 This refers to your letter of March 31, 1998, in which you ask about permanently attaching a muzzle device to various firearms. A muzzle device, such as a muzzle brake or barrel extension, which is attached to a barrel by means of welding or high temperature silver solder having a melting point of at least 1,100 degrees Fahrenheit, is considered to be part of the barrel for purposes of measurement. A seam weld extending at least one-half the circumference of the barrel or four equidistant tack welds around the circumference of the barrel are adequate for this purpose. A firearm having a muzzle brake, cap, or barrel extension permanently attached by those same methods to cover the threads on a barrel, would not be considered to have a threaded muzzle. Please note, however, that any muzzle device or barrel extension which functions as a flash suppressor or grenade launcher would still constitute one of the qualifying features of a semiautomatic assault weapon as that term is defined in 18 U.S.C. section 921(a)(30(B). Industrial adhesive products are not an acceptable method for permanently attaching a muzzle device.     

 We trust that the foregoing has been responsive to your inquiry. If you have further questions concerning this matter, please contact us.      

 Sincerely yours,
[signed]
Edward M. Owen, Jr.
Chief, Firearms Technology Branch 

——————————————————————————————————————————————————————————————————————–       

The Defense Attorney had asked what the status was of the barrel installed on the Bushmaster, because the Assistant District Attorney was threatening to enhance the charges by the presence of a “FIREARM”. A Bushmaster rifle manufactured after the implementation of the state’s SAW laws, equipped with 2 or more of the infamous items, and used in the commission of a crime,  changes the crime’s status to one committed while “armed with a firearm”. Upon review of the “firearm” as provided by the defense, it was ascertained that the Bushmaster was a current production model and that it was fully functional. The barrel was consistent with an 11 1/2″ Commando-length heavy barrel unit and that it had a “fake” XM-177 – look-a-like muzzle attachment that appeared to have been installed in a “Drilled and Pinned then Welded Over” method. That method, approved by the ATF for compliance with federal law, was determined to be correctly adhered to in the example presented.      

 During testimony, when questioned as to the accuracy of the “expert witness’” determination of compliance, the prosecutor had thrust the rifle towards the witness-box and as exclaiming as a question “so there are no threads on this barrel?” during which he twisted the muzzle device off the barrel exposing the barrel’s threads. As he waved the end of the barrel in front of the jury, the only answer that could be provided was “yes there are threads on the barrel”.       

 It was obvious that the ADA had wrenched the “fake” XM-177 off and sheared the pin retaining it onto the barrel. Yes the barrel was 11 1/2″, but the fact that the prosecutor had asked the question, had more ramifications than with just this case.       

 A posting was made to AR-15.com brefly explaining the event and the ADA’s questions and the answer given, and in a matter of hours, hundreds of board posters were questioning the intent of the post. The staff member known as “Aimless” immediately locked the post after writing that it was (paraphrased) obvious that an innocent gun owner was sent to jail by a person who hates NY gun owners.       

 As per the person I talked to, the husband had been charged with attempted murder while armed with a “firearm” , but in a mid-trial plea agreement, he plead out to Assault in the second degree. Assault 2 is a Class D felony. The crime up-grade of being armed with a “firearm” was dropped.As you can see, AIMLESS@AR15.COM is wrong in his continued persecution.      

AIMLESS has committed Defamation with Libel through publication. The defense of it as having been written as an ongoing dialogue that is generally not edited or regulated is wrong. When published in more durable form, for example in written words, blogging and the like, it is considered libel. Bulletin Board owners are publishers and individuals identified as “Staff” are employees, agents or representatives of the publisher of the Internet-based community. It can be shown that the owners of the Message Board benefit monetarily from the actions of “Staff” with regard to the defaming of a business that shares market with “fee-paid” business’ who utilize AR15.com for direct marketing purposes.     

In other words, it’s all about the money!