Cite as Warin v. Director, Dep't of Treasury, No. C 80-210, (N.D. Ohio October 14, 1983) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISION FRANCIS WARIN, ) ) Plaintiff, ) ) No. C 80-210 -vs- ) ) OPINION and ORDER DIRECTOR, DEPARTMENT of the ) TREASURY, BUREAU of ALCOHOL, ) TOBACCO and FIREARMS, ) Defendant. ) WALINSKI, J.: This matter is before the Court on the motion of defendant to dismiss, the plaintiff's opposition thereto, and defendant's reply with attached affidavit. The plaintiff is a convicted felon who seeks a declaratory judgment as to whether a certain "high rate of fire spring device" is a "firearm" as defined by applicable federal statute, and whether, as a felon, he may possess such a device. By amended complaint, the plaintiff predicates jurisdiction on 28 U,S.C. section 1331, a federal question claim, and 5 U,S.C. sections 701-706, the Administrative Procedure Act (APA), and seeks declaratory relief under 28 U.S.C. section 2201. This case is on remand from the United States Court of Appeals for the Sixth Circuit. The facts relevant in the instant action were set forth in the Court of Appeals decision, dated March 19, 1982, and therefore, will not be repeated herein. In that opinion, the Sixth Circuit reversed this Court's grant of the government's motion to dismiss the claims of the plaintiff based on sovereign immunity. The Court of Appeals said: "We align ourselves with the circuits that have concluded that 5 U.S.C. section 702 waives the sovereign immunity defense in actions for non-monetary relief under section 1331. Jaffee v. United States, 592 F.2d 712 (3d Cir.), cert. denied, 441 U.S. 961 (1979)" (additional citations omitted). Accordingly, this Court will consider the remaining issues in this suit. The defendant in the instant motion is again moving that the plaintiff's amended complaint be dismissed. The defendant contends that the sole issue before the Court is whether the device in question falls within the purview of a federal tax statute, thereby subjecting it to provisions of registration and taxation contained therein. [footnote 1] The government maintains that the spring powered device constitutes a "firearm" within the definitional section [footnote 2] of The National Firearms Act, 26 U.S.C. sections 5801 et seq. The defendant further maintains that this Court "lacks subject matter jurisdiction . . . since district courts are precluded from rendering declaratory judgments with respect to federal tax matters." (Def. Memorandum at 5). In the memorandum in opposition to defendant's motion to dismiss, the plaintiff states: Contrary to the Government's argument, however, the primary focus of the case at bar does not require a ruling on defendant's tax liability under the National Firearms Act. 26 U.S.C. section 5801 et seq. Plaintiff simply requires a ruling as to his rights and liabilities as a convicted felon under the applicable sections of Title 18 of the United States Code which prohibit convicted felons from possessing firearms. (Pl. Opposition at 1). The plaintiff contends that this declaratory judgment was initiated to determine whether the spring powered device designed by him is a firearm under the Gun Control Act, 18 U.S.C. sections 921 et seq, and the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. App. sections 1201 et seq. Throughout this litigation the plaintiff has contended that these two acts preclude him, as a convicted felon, from possessing and manufacturing his device if it is deemed a firearm under Title 18. See 18 U.S.C. sections 922 and 923. Determination in this case as to whether plaintiff's device is a machinegun as defined by the Internal Revenue Code is said to be "merely ancillary to determining plaintiff's rights and liabilities under the Gun Control Act." (Pl. Opposition at 5). It is well settled that district courts lack jurisdiction to render declaratory judgments regarding federal tax matters. See, e.g., Willis v. Alexander, 575 F.2d 495 (5th Cir. 1978); West Chester Feed & Supply Co. v. Erwin, 438 F.2d 929 (6th Cir. 1971); Red Star Yeast & Products Co. v LaBudde, 83 F.2d 394 (7th Cir. 1936). The language of the Declaratory Judgment Act expressly precludes a federal court from granting declaratory relief in federal tax cases, [footnote 3] 28 U.S.C. section 2201. In view of the specific prohibition contained in section 2201, this Court is precluded from considering the defendant's determination that the spring device was a "firearm" as defined in 26 U.S.C. section 5845(b). This Court, however, is unwilling to accept defendant's contention that the federal tax question is the sole issue in this case. Plaintiff argues that the determination by the defendant that the spring device falls within the purview of 26 U.S.C. section 5845 "creates" a question or controversy as to the two Title 18 Acts. The Court agrees. Legislative history indicates that the National Firearms Act, the Gun Control Act, and the Omnibus Crime Control and Safe Streets Act were intended to "provide support to federal, state, and local law enforcement officials in their fight against crime and violence . .." (P.L, 90-618, section 101). The Title 18 Acts were established in June, 1968, with the enactment of Public Law 90-351. In October, 1968, Public Law 90-618, created the NFA and also amended the Title 18 Acts. Title 18 places restrictions, inter alia, on the licensing of persons possessing, manufacturing and otherwise dealing in firearms and Title 26 directs the registration and taxation of firearms. The government maintains that the device designed by the plaintiff is a "firearm" for tax purposes under Title 26, but is not a "firearm" pursuant to the definitions of Title 18. (D. Memorandum at 5). In support of the argument that the device does not constitute a "firearm" under Title 18 and, therefore, no controversy exists in this case, the government submits an affidavit from the Acting Director of the Bureau of Alcohol, Tobacco and Firearms. (D. Reply Brief, attached Affidavit of Stephen E. Higgins). "The constriction put on a statute by the agency charged with administering it is entitled to deference by the courts, and ordinarily that constriction will be affirmed if it has a 'reasonable basis in law.'" Volkswagonwerk Aktiengsellschaft v. FMC, 390 U.S. 261, 272 (1968); United States v. Johnson, 280 U.S. 183, 193 (1930). This Court, however, is cognizant of recent caselaw in which a district court found a device to be within the statutory definition of "firearm" under Title 18, despite the longstanding contrary interpretation of the Bureau of Alcohol, Tobacco and Firearms. United States v. Green, 515 F.Supp. 517 (1981). Accordingly, the instant declaratory judgment action is an appropriate forum to determine whether plaintiff's spring device is a firearm under Title 18. The "starting point" in any statutory interpretation must be the language of the statute itself. Lewis v. United States, 445 U.S. 55, 60 (1980) (construing 18 U.S.C. App. section 1201 et seq.). The Gun Control Act, 18 U.S.C. sections 921 et seq. defined "firearm" as: (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm. 18 U.S.C. section 921. The Omnibus Crime Control and Safe Streets Act, 18 U.S.C. App. 1201 et seq., defines "firearm" as: [A]ny weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the weapon; or any firearm muffler or firearm silencer; or any destructive device. Such term shall include any handgun, rifle, or shotgun; [a "destructive device" is defined as] [A]ny explosive, incendiary, or poison gas bomb, grenade, mine, rocket, missile, or similar device; and includes any type of weapon which will or is designed to or may readily be converted to expel a projectile by the action of any explosive and having any barrel with a bore of one-half inch or more in diameter. 18 U.S.C. section 1202(c)(3) and (4). After comparing each of these definitions with the definition of "firearm" in the tax code, 26 U.S.C. section 5845 (see supra note 2) the basis for the defendant's conflicting classifications of the spring device is clear. As the Acting Director's affidavit indicates, the Title 26 definition of "firearm" includes "any combination of parts designed or intended for use in converting a weapon into a machinegun." 26 U.S.C. section 5845(6). See (D. Reply, attached Higgins Affidavit). This language distinguishes the tax code definition from the two Title 18 definitions. The facts indicate that the device designed by plaintiff was determined by the defendant to be a "combination of parts" designed or intended for use in converting a weapon into a machinegun. (Defendant's letter dated Feb. 6, 1978, Ex. D of Complaint). It appears clear, therefore, that a device considered to be "a combination of parts" would fall under the purview of the National Firearms Act and yet not be within the definitions included in the Title 18 Acts. This Court concludes that the determination by the defendant that the device is not a firearm under the definitions included in the Gun Control Act, and the Omnibus Crime Control and Safe Streets Act, has a "reasonable basis in the law." Volkswagonwerk, supra, 390 U.S, at 272. Therefore, the Court affirms the statutory interpretation of the Bureau of Alcohol, Tobacco and Firearms with reference to the plaintiff's device. (D. Reply, attached Higgins Affidavit). This Court is precluded from considering the defendant's determination as to 26 U.S.C. section 5845(b), because it is a tax matter. Having concluded the plaintiff's device is not a "firearm" under Title 18, this case is void of controversy. Accordingly, the defendant's motion to dismiss should be granted. For the foregoing reasons, it is ORDERED that defendant's motion to dismiss is granted. IT IS FURTHER ORDERED that this cause is dismissed. FOOTNOTES 1. The National Firearms Act, 26 U.S.C. section 5801 et seq. provides, inter alia, that prior to the manufacture of a "firearm," as defined by the Act, the maker must file an application with the Secretary of the Treasury to make and register such a firearm, and have the application approved. 26 U.S.C. section 5822. The Act also requires that the maker pay a specific manufacturing tax for each firearm made. 26 U.S.C. section 5821. 2. The term "firearm" is defined in 26 U.S.C. section 5845(a) to include "a machinegun" which 26 U.S.C. section 5845(b) defined as follows: . . . any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any combination of parts designed and intended for use in converting a weapon into machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person. Id. (emphasis added). 3. 28 U.S.C. section 2201 provides in relevant part "any court of the United States * * * may declare the rights and other legal relations of any interested party seeking such declaration * * * except with respect to Federal taxes."