We continue to analyze prudent behavior for auctioneers when selling firearms at auction. In this treatise, we address specifically an onsite auction where the auctioneer (with or without a Federal Firearms License) is assisting an “estate” with these sales.
It has been well established that firearms at a single-seller onsite auction where the auctioneer doesn’t take control nor possession of the firearms, they can be sold at auction per federal law without any background check (subject to state or local law which might prescribe more stringent requirements.)
Here’s our recent article concerning this topic: https://mikebrandlyauctioneer.wordpress.com/2017/08/16/auctioneers-with-ffls-acting-as-if-they-arent-indeed-they-can/
Today, we explore who must maintain control and possession of these firearms at this single-seller, onsite auction. Is it the seller, or is it possibly a designee of the seller (the seller’s sister, for example?) We would hold it must be the seller (“executor”) as the ATF prescribes:
We quote here from the ATF’s website: https://www.atf.gov/firearms/qa/if-licensed-auctioneer-making-sales-firearms-where-may-those-sales-be-made
If a licensed auctioneer is making sales of firearms, where may those sales be made?
In a consignment auction firearms may be displayed at an auction site away from the auctioneer’s licensed premises and sales of the firearms can be agreed upon at that location, but the firearms must be returned to the auctioneer’s licensed premises prior to transfer. The simultaneous sale and delivery of the auctioned firearms away from the licensed premises would violate the law, i.e., engaging in business at an unlicensed location.
However, if the auctioneer is assisting an estate in disposing of firearms, the estate is the seller of the firearms and the estate is in control and possession of the firearms. In this situation, the firearms may be sold by the estate at the auction site.
[18 U.S.C. 923(a); 27 CFR 478.50]
As can be seen here, … if the estate is the seller of the firearms and the estate is in control and possession of the firearms … and this doesn’t say the estate’s designee nor agent nor representative nor auctioneer nor sister. If we safely substitute seller — for executor — then this reads “seller’s control and possession.” We discussed the word “estate” versus “seller” here: https://mikebrandlyauctioneer.wordpress.com/2016/09/09/what-is-an-estate-in-regard-to-firearms/
It is conceivable that the ATF would interpret the seller’s sister (or anyone else) possessing the firearms constituting the seller not in control and possession? We think more than likely. Further, even if only moderately likely — why take the chance?
While it is being suggested that all the ATF is worried about is, “single seller, whether the auctioneer is engaged in the business and the auctioneer taking possession” I would ask if potentially an ATF agent would inquire why the “executor” (seller) specifically lacked control and possession of the firearms at their their auction claiming exemption?
Mike Brandly, Auctioneer, CAI, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, RES Auction Services and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College of Business, Executive Director of The Ohio Auction School, an Instructor at the National Auctioneers Association’s Designation Academy and Faculty at the Certified Auctioneers Institute held at Indiana University.