TITLE II FIREARMS TRANSFERS AND "TAXPAYER PRIVACY"

 by James H. Jeffries, III

      You've finally given in to temptation and decided to buy that
Thompson you've always wanted.  You've paid the dealer.  He's sent
you a partially completed BATF Form 4, "Application for Tax Paid
Transfer and Registration of Firearm."  You live in a jurisdiction
where the sheriff is not a petty tyrant or one of the Brady Bunch
and he's signed the law enforcement certification on the back of
the Form 4.  You've sent the signed Form 4 along with your
photograph and fingerprint cards back to the dealer.  He's sent the
package to BATF's National Firearms Act Branch in Washington for
approval of the transfer.  You wait in anticipation.  And wait... 
And wait...

      You call the dealer.  He doesn't know what the problem is. 
Most of his transfers go right through.  You write BATF.  No
response.  You call the NFA Branch.  They won't talk to you --
something about "taxpayer privacy."  BATF is invoking an obscure
provision of the Internal Revenue Code to avoid having to deal with
anxious buyers.

      Section 6103 of the Internal Revenue Code is a provision which
protects the confidentiality of federal tax returns and return
information.  Back in the days of Watergate and election campaign
dirty tricks the government occasionally misused income tax
information to embarrass political opponents and for other illicit
non-tax purposes.  Congress reacted by creating stringent controls
on the use and disclosure of taxpayer return information.

      Since the NFA is ostensibly a tax statute BATF takes the
position, probably correctly, that all NFA transfer and
registration forms are "tax returns," the disclosure of which is
forbidden by Section 6103, except to the "taxpayer."  Since the NFA
transfer tax is legally imposed by Section 5811 of the Internal
Revenue Code on the transferor (the dealer), he is the "taxpayer"
-- even though we all know who really pays the transfer tax.
      No one would argue with the proposition that the government
shouldn't play fast and loose with confidential tax information. 
You wouldn't want a list of your Forms 3 or 4 published in the
local newspaper (unless you're just itching to try out your
inventory on some live targets).  But it's carrying the privacy
argument to extremes to deny information to the other party to a
transfer.  Think about it for a second.  What single iota of
information is there on that completed Form 4 which you haven't
already seen, or which should be protected from you.  You signed
the thing.  The dealer probably sent you a copy when he submitted
it to BATF.  Hell, BATF is going to send you a copy when the
transfer is approved.  When does it cease being the dealer's tax
return information and start being your's?  Even if the transfer is
disapproved for some reason, there's no confidentiality aspect
between the buyer and seller or between the two of you and the
government.

      It would be a clearly permissible legal interpretation of
Section 6103 for BATF to satisfy transferee inquiries.  So why
don't they?  Because it saves them a lot of work and aggravation. 
The transferor has his money and has done his part of the deal.  He
doesn't have nearly the incentive to bug BATF with calls and
letters on your behalf.  The buyer is in a different position. 
He's finally talked Momma into letting him get a new toy.  He's
paid his money.  He's jumped through all the hoops of getting
fingerprinted, photographed, and wheedling a certification from the
sheriff.  He wants his gun and he has plenty of incentive to bug
BATF.  Section 6103 is BATF's easy way of not having to answer the
mail.

      BATF's interpretation is also troublesome for sellers.  It
gives the dishonest dealer who has tried to transfer a problem gun
an excuse to stall an impatient buyer while he has the use of the
money.  And for the honest dealers (the great majority), it hurts
customer relations and imposes additional telephone and
correspondence costs in trying to solve the problem.

      Can you do anything about the problem?  You bet.  Taxpayers
(dealers/transferors) can waive their privacy rights under Section
6103.  Just include the following signed, dated statement with your
next Form 4 (or Form 3 or Form 5):

      "I, Douglas Dealer, transferor, hereby request and consent to
the disclosure, to Buddy Buyer, transferee, all return information
pertaining to the requested transfer of my Thompson submachinegun
(Thompson/Center Arms Co. Model 1D, Serial Number 12345) by BATF
Form 4 dated January 1, 1993.  This request and consent is made
pursuant to Section 6103(c) of the Internal Revenue Code of 1986,
Title 26, United States Code."

      Since no one has ever done this before, your purchaser will be
met with a stunned silence when he inquires of the government. 
(The first rule of a bureaucrat: If I don't do anything, I can't do
anything wrong.)  When nudged, NFA Branch will say something about
consulting with counsel.  (Second rule of the bureaucrat: It isn't
going to happen on my watch.)  When nudged again, our erstwhile
public servants will give some gobbledegook non-response.  (Third
rule: When in doubt, mumble.)  Ultimately, after the problem has
been admired by BATF's lawyers for a sufficient period, I predict
that your buyer will be given the requested information -- or more
likely his transfer.  Non carborundum illegitimi.

   [The author is a retired Department of Justice lawyer and a
retired Marine Corps Reserve colonel engaged in the private
practice of firearms law in Greensboro, North Carolina.]