Stamp cancellation/refund & "but the ATF said..."

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[ARCHIVED THREAD] - Stamp cancellation/refund & "but the ATF said..."

Posted: 7/24/2018 2:53:08 PM EDT

I know we have discussions on here that often include someone saying something like “I overheard an employee at my LGS say…” or “I read on a gun trust lawyer’s site that…” or (in a very recent thread) “the guy at the ATF said…”. And then you’ll have somebody on AR15 reply with some version of “well, that’s simply not true”, and the argument continues.

So, I want to share a recent real-life example of a case where even the ATF doesn’t always know what they’re talking about. This is not a shot at those employees, just a reminder that you need to read the laws and understand them to the best of your ability.

The Background: I have an approved Form 1 for a silencer that I filed on 9/8/15 and it was approved on 1/13/16. Yes, it’s old enough it’s actually an eForm. The silencer is/was going to be a dedicated suppressor for my AR57 upper. I have three Spectres that I’ve used on that upper on the rare occasion that I shoot it, so I’ve never been in a rush to actually make the F1 can. The issue is it can be a max of 1.25” OD because it’s recessed in the handguard to attach to the 6” barrel, and I wanted it as big as possible…and that’s not a standard size in the solvent trap world. So, I’d often considered cancelling the stamp and buying a Gemtech SAR-57…the silencer specifically made for the 6” AR57 upper.

I know the Form 1 says you can cancel a stamp if the firearm has not been made or modified by returning the original stamp along with a written request. There is no deadline mentioned. However, I remember a thread sometime in the last several months that quote a regulation that included a three-year window. I had that bit of info in my head and decided to email the NFA Division to ask a series of questions. I sent the following email:

I have an approved Form 1 (for a silencer) that I'm considering canceling. I know the current F1 includes this:
Cancellation of Approved Application. An approved application may be cancelled only if the firearm had not been made or modified. The maker must return the approved application with original tax stamp affixed with a written request for cancellation, citing the need and that the making of the firearm did not take place. The NFA Division will arrange for a refund of any tax paid.

I've never taken the first step in making this silencer, other than filing the form...so that's not an issue. But it still leaves me with a couple questions:

1. Is there a deadline to request the cancellation? If so, is it based on the submission date or the approval date?

2. With an eForm, there's obviously no "approved application with original tax stamp affixed", so do I even need to send anything back?

3. Can the written request be an email? If so, if I send it to this account is that good? And is a regular email enough, or do I need to print out a request, sign it, scan it, and email that in?

4. Does the refund go back on the card that was used? Or will I get a check in the mail?

Thanks.

-Greg

I sent that at 10:41PM on Friday, and got the following reply at 8:03AM on Monday (can’t really complain about that response time):

Good morning,

Please see answers below.

(employee’s name removed)
______________________________
I have an approved Form 1 (for a silencer) that I'm considering canceling. I know the current F1 includes this:
Cancellation of Approved Application. An approved application may be cancelled only if the firearm had not been made or modified. The maker must return the approved application with original tax stamp affixed with a written request for cancellation, citing the need and that the making of the firearm did not take place. The NFA Division will arrange for a refund of any tax paid.

I've never taken the first step in making this silencer, other than filing the form...so that's not an issue. But it still leaves me with a couple questions:

1. Is there a deadline to request the cancellation? Yes. One year. If so, is it based on the submission date or the approval date? Approval date.

2. With an eForm, there's obviously no "approved application with original tax stamp affixed", so do I even need to send anything back? There are not any E_Form 1s currently being approved.

3. Can the written request be an email? If there is a signature. If so, if I send it to this account is that good? Yes. And is a regular email enough, or do I need to print out a request, sign it, scan it, and email that in? Correct. Email alone is not sufficient.

4. Does the refund go back on the card that was used? Or will I get a check in the mail? It would go to the account that paid it.

One year, huh? Let’s see if we can straighten that out. Follow-up email sent at 8:49AM:

One year? The Form 1 and 4 don't mention a timeframe. The statute I did find says three years:

27 CFR § 479.172 Refunds.

As indicated in this part, the transfer tax or tax on the making of a firearm is ordinarily paid by the purchase and affixing of stamps, while special tax stamps are issued in payment of special (occupational) taxes. However, in exceptional cases, transfer tax, tax on the making of firearms, and/or special (occupational) tax may be paid pursuant to assessment. Claims for refunds of such taxes, paid pursuant to assessment, shall be filed on ATF Form 2635 (5620.8) within 3 years next after payment of the taxes. Such claims shall be filed with the Chief, National Firearms Act Branch serving the region in which the tax was paid. (For provisions relating to hand-carried documents and manner of filing, see 26 CFR 301.6091-1(b) and 301.6402-2(a).) When an applicant to make or transfer a firearm wishes a refund of the tax paid on an approved application where the firearm was not made pursuant to an approved Form 1 (Firearms) or transfer of the firearm did not take place pursuant to an approved Form 4 (Firearms), the applicant shall file a claim for refund of the tax on ATF Form 2635 (5620.8) with the Director. The claim shall be accompanied by the approved application bearing the stamp and an explanation why the tax liability was not incurred. Such claim shall be filed within 3 years next after payment of the tax.

(68A Stat. 808, 830; 26 U.S.C. 6511, 6805)
[T.D. ATF-270, 53 FR 10512, Mar. 31, 1988,as amended by T.D. ATF 2013R-9F, 79 FR 46693, Aug. 11, 2014]

And I know eForms aren't being approved. The one is question was approved in 2016, and my three years runs out in Sep '15.

1. Will a cancellation/refund still be processed based on the regulation I quoted above?
2. If so, does the ATF Form 2635 need to be filed? Or just a written request?
3. and if so, do I send a printed out copy of the eForm?

Another quick response…9:00AM:

Looks like it is three years according to the regulation. Sorry for the misinformation. I’ll make a note of that for future reference. Most refund requests for firearms that were never made are submitted in letter format and yes you do need to send in the original form even if it is an EForm without an affixed tax stamp.

(employee’s name removed)

He didn’t specifically answer my last questions, just a general “submit a letter with a printed copy of the form”. But, at this point, I think I’m going to actually make the can instead of buying one.

Had I not known the actual regulation, I’d have been sitting here fat, dumb, and happy…or maybe irritated, that I couldn’t request a refund. The truth is I have no idea what would’ve happened if I’d sent it the request before my three years were up, but after one year had elapsed. For that matter, what would’ve happened if I sent it in after the three years? Would the person that opened it know the statute?

I just wanted to share a recent real-world example of a situation in which “but the ATF said…” wasn’t the case. And some of you may have just learned about the 3-year window.

Posted: 7/24/2018 3:23:26 PM EDT

[#1]

As always, BW is on target. Thanks for the heads up!

Posted: 7/25/2018 11:12:05 AM EDT

[#2]

This is fairly typical of large bureaucracies. Federal regulations are so expansive that one would think that a specialist in a particular agency would have people focused on their narrow field of expertise. My guess is they get so few cancellations that this concern is down in the weeds, so the OJT was lacking and the person guessed.

An ethical person, rather than guessing would have looked up the regulation or asked. This is a cultural problem that isn't limited to bureaucrats. I always appreciate your posts for the clarity and helpfulness they provide.

I'm sure you can come up with something useful for that approved Form 1 even if you have to amend its description. There are many more commercial mounts available now that can be used as well great recent designs for inspiration.

ETA: For that application I'd look for a custom tube or adapter to get a 3-lug mount to mate to your 1.25" tube. I bet Rusty could turn you one and 7075 aluminum would be light enough and strong enough. Design it right and the 3-lug mount isn't a suppressor part or part of the length.

Posted: 7/25/2018 12:51:56 PM EDT

[#3]

Quote History

Quoted:

ETA: For that application I'd look for a custom tube or adapter to get a 3-lug mount to mate to your 1.25" tube. I bet Rusty could turn you one and 7075 aluminum would be light enough and strong enough. Design it right and the 3-lug mount isn't a suppressor part or part of the length.

View Quote

Oh, I have a plan in place now...will keep the F1. Got confirmation I could get access to some milling equipment, and gonna try a monocore (which has been the plan floating around in my head for the last three years) for the heck of it.

Posted: 7/25/2018 6:37:38 PM EDT

[#4]

As usual, good info from Big Waylon. SO, the ATF dude was wrong in initial response on 1 year vs. 3 year statute of limitation and that the statute of limitations is measured from payment of tax, not from approval of application.

The 3 year from payment is also the standard applied to most income tax scenarios.

Similar to my recent go around with ATF over an integral suppressor built on a rifle receiver that the seller never notified the ATf to remove from the registry..... Ended up he just had to send the NFA Branch a letter. Agent initially told me that I'd have to file a Form 1 or Form 4 to keep it, but she wasn't working FOR the NFA Branch like your guy was...

[ARCHIVED THREAD] - Stamp cancellation/refund & "but the ATF said..."

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