NFA Tax Stamp Denials.
Something apparently has changed at the ATF/FBI. Clients who, in the past, had no problem getting an NFA tax stamp are being disapproved. The reason for being disapproved is because the NCIC background check is being classified by ATF as “unresolved”.
I was hoping to have more information and a solution before writing this article. However, the 120-day clock for the special Form 1 applications is ticking. Those making application to the ATF need to be aware of the issue.
So far, it appears to be older applicants with criminal charges as old as the early 1970s and as recent as the early 2000s. These NFA tax stamp applicants have no problem passing dealer – initiated background checks on Title I firearms. Dealer-initiated background checks are Form 4473 checks run through the Colorado Bureau of Investigation (CBI) and NCIC. A public search of CBI records sometimes shows the offending criminal record. Often a public search of CBI records does not show the offending record because Colorado considers the matter resolved and the record sealed. Criminal records are often sealed automatically after a certain period of time and sometimes at the request of the individual. Once sealed, those matters do not show up on a standard CBI search request but do show up to the FBI. To obtain those records requires a special trip to CBI or an application to the FBI for your personal NCIC “rap sheet”. CBI will only release sealed criminal records to the individual in question and in person. FBI will release the criminal records to us if authorized by the client. Both require formal fingerprinting.
In speaking with the FBI, the FBI points the finger at the ATF claiming that all the FBI does is run the NCIC report. However, we have requested UPINs from the FBI via a Voluntary Appeal File application (VAF) process and the FBI is denying those UPIN requests. I would say for the same reason, but so far, nobody is telling us or the client exactly what the issue is. There is a process in Colorado to supplement criminal records. However, to supplement the record we must know what the problem or issue is that needs to be corrected. Otherwise, we are guessing. Needless to say, this has been a little frustrating and time consuming.
Below is my best guess about what is going on. It appears that somebody at the ATF, FBI, or both has decided that any charge, no matter how minor, that could possibly result in an individual being considered a prohibited person is being used to disapprove NFA tax stamp applications as an unresolved background check. Pursuant to current case law, there is no court remedy for an improper denial of an NFA tax stamp. See, e.g., Bowen v. United States (S.D. Ga. 2021) and Kaszycki v. United States (W.D. Wash. 2020). These two cases coincide with about when clients report the issue arising. For example, if there is a charge involving a physical altercation, we suspect the ATF takes the position that the individual must show that it did not involve domestic violence even though the charge is not a DV charge. To contrast, another example would be a felony arrest where no charges were ever filed. Individual is arrested, fingerprinted, and then let go because law enforcement determined that it was a mistake. In that case and assuming older cases, after ten years the Colorado record might be automatically sealed and then eventually purged with the CBI disposition being “Record Purged”. “Record Purged” is not a defined criminal disposition even though CBI may know that means charges were never filed. FYI. Today, if charges are not filed, the Colorado record is sealed rather quickly. The individual feels vindicated for the moment. However, that arrest record is still out there and now, since even shielded from the individual’s view, can come back to haunt them when they apply for an NFA tax stamp.
I will write more on this issue as we progress. Hopefully, we will have some success in clarifying the record and eventually getting our clients back in good standing with the ATF.
