Silencer Saturday #450: 4473 vs. Form 4 Transfers

Good afternoon, everyone, and welcome back to TFB’s Silencer Saturday, brought to you by Yankee Hill Machine, manufacturer of the new Victra 20-gauge shotgun suppressor. It has been more than a month since the first legal, non-stamp silencer transfer. More questions remain than answers, but that has not stopped broad adoption of transfers on a Form 4473. Is it safe to do so, or should you wait and see?

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Disclaimer: This is not legal advice. I am not your attorney.

Unless you live under a rock, you have probably heard about the injunction against the NFA that has allowed the first stamp-free silencer transfers since 1934. That injunction was a huge win for the silencer world, but it does not apply uniformly. This leaves us in a bit of a confusing situation. Clearly, for some people, it is legal to transfer silencers without a form. The clearest way for that to happen is to be a member of GOA.

But this also leaves many points for future clarification. Thankfully, the ATF is working on it. In a post on X, ATF Director Robert Cekeda stated that the agency is working on guidance but that it would take time. This is not an unreasonable position. There are a lot of moving pieces, and whatever advice the ATF gives needs to be correct. It would be awful if they get it wrong and have to redo it later. It would be doubly bad if people rely on that and make decisions that could incur criminal liability.

One upside of this message is that Director Cekeda notes that no enforcement action will be taken against individuals who are complying with the terms of the injunction. This is huge. Knowing that the enforcement agency will not take action in the interim while this is getting figured out is very reassuring. So while you may not have to worry about masked men descending on your compound to do you harm, there are still logistical and regulatory concerns to factor in.

One of the big ones is on the dealer side. Dealers receive their silencers on a Form 3 transfer from a manufacturer or distributor. The item is then disposed of to the recipient, be it an individual, a trust, or an LLC, via a Form 4. That Form 4 performs the function of moving the silencer out of the dealer's inventory and into that of the final purchaser. But with no Form 4 to show the item has moved out, then what? Those silencers still appear as items within the dealer's inventory. This is one of the types of logistical hurdles the ATF needs to fix.

So should you jump on the bandwagon and do a 4473 transfer or stick with the trusty old Form 4? That is a question that only you can decide for yourself. While this is not legal advice, let me share a couple of points that can help you make the right choice for you.

First up, I like the certainty of a Form 4. I have a lot of them. Having more of them is no big deal. I already have my trust instrument that possesses them. I am already set up to receive items for Form 4 and track the documentation. I have also observed that Form 4s and Form 1s, for that matter, are moving very quickly. The last Form 1 I submitted to turn a Military Armament Corporation MAC-5 into an SBR is under review, and that took about 3 days on a trust. That is way quicker than it used to be.

The ATF has not yet published their transfer data or average transfer times for August, but I think the transfer delays will be minimal in that dataset. On the other hand, if the 4473 is the new normal, why not start doing it now? Many dealers have gotten on board, and most have processes in place. My discussions with people in the industry suggest that we are into the hundreds of thousands of silencers transferred on a 4473 already. This is not a thing that can be ignored by the regulator. The ground facts have changed to a point where it would be very hard to implement some sort of unilateral or unreasonable control, simply because there are so many now in circulation without a Form 4.

That's not a guarantee that you might not face problems in the future, but the more people who do it, the less risky it is. The question you need to answer is: do I want to be part of that group or not? While it is not a guarantee that everything will turn out all right in the end, this could be the basis for some type of future amnesty or grandfathering. Let's say a few years down the road, things change in the U.S. legal system, and we go back to needing Form 4s. On transfers, perhaps those transfers will cost more than $200. What to do about the silencers that don't have a Form 4 at all is a tricky question to answer as a bureaucrat. Grandfathering is usually the safest course legally.

If that is the case, getting on the train now may set you up in the future to avoid other regulatory burdens that could be added, but it also might subject you to regulatory burdens in the interim as the system gets worked out (or maybe even heightened burdens down the road). This is the hard part with telling the future. No one really knows. For me personally, again, this is not advice to you. I am still proceeding with Form 4 transfers in most instances. There's one specific item that I might try on a 4473, but I am a very risk-averse person, and I want to see what the ATF guidance says before I move into the 4473 realm.

I also am not a huge fan of some of the waivers that dealers are having people sign. Waivers may not be all they are cracked up to be, and attorneys are often able to get around them successfully. That said, waivers can create a lot of other problems. They may subject you to something like mandatory arbitration or have other confessions of judgment or terms that are hugely detrimental to you in the event of any problems you may have with the dealer. Read the terms and conditions very carefully before you decide to sign someone's waiver.

The most reasonable waiver in this circumstance will be limited strictly to the unclear regulatory status of the silencer. It will say that you will not sue the dealer as a result of whatever may happen with your 4473 silencer. That's not unfair, and I would not feel uncomfortable signing one of those myself, but if it is a multi-page document and talks about all sorts of other things, I would beware.

In summary, the 4473 route is less risky than it was a few weeks ago. There are still many open questions. But there are now lots of silencers without tax stamps in circulation, and the Director of the ATF has promised that clarification is coming and that action will not be taken against those people protected by the injunction. A Form 4 is still the lowest risk option. And dealers who are staying in that lane don’t deserve hate or vitriol. Once the ATF guidance releases we will need to reassess, and we will be sure to keep you updated.

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