Resident v Residency

[KCPhoenix]

I am seeking out your knowledge please. I'm trying to find more concrete laws [wording wise] regarding a person's residency vs the state they are a resident of with respect to firearms. I know the wording in the GCA states "State of residence. The State in which an individual regularly resides, or maintains a home..." but it goes on to state in order to prove you are a resident you must present a VA drivers license, VA vehicle registrations, etc [at least to FFLs]

So here's the scenario and question:
A person has lived and worked in VA for 2 plus years [6 years now] yet has not gotten a VA drivers license, registered his vehicles in VA or registered to vote in VA nor has he filed taxes as a resident of VA. The person decided to keep his out of state license, vehicles registered in the other state, registered to vote in the other state, etc basically to avoid paying VA taxes.

Seemingly said person would not be considered a resident of VA with respect to an FFL given the inability to meet the requirements for proof they are a VA resident.

So under Federal and/or State firearms law would this person be considered a resident of the Commonwealth of Virginia or the other state?

And part two of the question, could a VA resident transfer, sell or gift firearms to the above person knowing they have an out of state license though they have a home in VA? [I know the document of "Transfer Between Non-Licensees" has you list each person's home address, but it also states that you verified such by way of a government issued photo ID.]

[SpanishInquisition]

The other state...at least till the VA tax people figure out this hypothetical person isn''t paying VA taxes and hilarity can ensue.

Voting might get interesting too.

[KCPhoenix]

So then it would NOT be legal for me, as a VA resident, to transfer via gift, sale or barter any firearms to this person, correct?

[jdonovan]

a good initial test would be, could they substantiate their 'residency' to a FFL for an over the counter sale.

I would think in this 'persons' case they would be unable to do so.

So if they can't establish a proof of residency, then NO you can not exchange firearms with them.

If this person came to me and attempted a purchase, I would regard them as a non-virginia resident.

[KCPhoenix]

I completely agree with both replies here. Since the wording seems so "open to interpretation" regarding residency and resident on firearms, do you know of any legal documents or prior case law that addresses this situation directly?

[jdonovan]

http://www.atf.gov/firearms/faq/unlicensed-persons.html

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Q: What constitutes residency in a State?
The State of residence is the State in which an individual is present; the individual also must have an intention of making a home in that State. A member of the Armed Forces on active duty is a resident of the State in which his or her permanent duty station is located. If a member of the Armed Forces maintains a home in one State and the member’s permanent duty station is in a nearby State to which he or she commutes each day, then the member has two States of residence and may purchase a firearm in either the State where the duty station is located or the State where the home is maintained. An alien who is legally in the United States is considered to be a resident of a State only if the alien is residing in that State and has resided in that State continuously for a period of at least 90 days prior to the date of sale of the firearm. See also Item 5, “Sales to Aliens in the United States,” in the General Information section of this publication.

[18 U.S.C. 921(b), 922(a) (3), and 922(b)(3), 27 CFR 478.11]

http://www.atf.gov/regulations-rulings/ ... 2010-6.pdf

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To ensure compliance with this residency requirement, section 922(t) of the GCA requires 
licensees to examine a valid “identification document” (as defined in 18 U.S.C. 1028(d) 
and 27 CFR 478.11) of a firearm transferee.  This document must contain the residence 
address of the transferee so that the licensee may verify the identity of the transferee and 
discern whether the transferee has the intention of making a home in a particular State.  
Licensees transferring a firearm to a person not licensed under the GCA are required, 
pursuant to 27 CFR 478.124, to record the firearm transaction on an ATF Form 4473, 
which requires, among other things, the transferee’s residence address, including the 
transferee’s State of residence as it appears on the valid identification document.  

_THIS_ is what I as a licensee need to see, and is what I use to determine a state of residence for purposes of transferring a firearm to a person. From the information you have provided, this person can not substantiate via acceptable documents, that they are a resident of Virginia for purposes of firearm transfer.

Based on what virginia believes, the person _IS_ a VA resident and is subject to taxation, but that really has limited bearing on the transfer as, the federal rules can not be complied with, and you need to be legal at the Federal/State/local level for a proper transfer.

Oh as an aside, they may have failed to pay VA taxes for enough years that the level of unpaid tax may have now reached the level of a felony.

[tursiops]

I once worked in another state for a summer. The rules in that state were that if you were employed there, you had 10 days to get a drivers license in that state. I found that out on the 10th day.

[dorminWS]

There is certainly a period of time within which you must title and license your vehicles in this state if you live here. I don't remember what it is, but it is probably something like 60 days. May be shorter.

[KCPhoenix]

_THIS_ is what I as a licensee need to see, and is what I use to determine a state of residence for purposes of transferring a firearm to a person. From the information you have provided, this person can not substantiate via acceptable documents, that they are a resident of Virginia for purposes of firearm transfer.

Based on what virginia believes, the person _IS_ a VA resident and is subject to taxation, but that really has limited bearing on the transfer as, the federal rules can not be complied with, and you need to be legal at the Federal/State/local level for a proper transfer.

THANK YOU for your more "user friendly" explanation. That is where my "confusion" was as if private party transfers had the same requirements as a transfer with an FFL. I purported they did, especially given the "Record of Firearms Transfer Between Unlicensed Persons" states you have verified the address the other party listed as being correct by presenting identification from the same state. The party in possession [without my consent] of my weapon; however, is trying to say it was a gift to him and since we both live in VA it's legal. Would that classify as a stolen weapon then?

Oh as an aside, they may have failed to pay VA taxes for enough years that the level of unpaid tax may have now reached the level of a felony.

Is that considered tax evasion or something?

There is certainly a period of time within which you must title and license your vehicles in this state if you live here. I don't remember what it is, but it is probably something like 60 days. May be shorter.

The Commonwealth of Virginia states that new residents must obtain a VA driver's license within 60 days of moving here [unless you have a CDL, then it's 30 days.] If you're a non-resident temporarily living in VA you can drive with your out of state DL and registrations for no more than six months. It also states if you become gainfully employed, you are required to hold a VA driver's license. This "hypothetical person" has been gainfully employed [by a government agency no less] since Jan 2006 yet up through a month ago at least still refused to get a VA DL or register vehicles, etc.

[tursiops]

KC, i think you need a lawyer, or a policeman, not an internet forum.

[KCPhoenix]

Understood tursiops [actually do have an attorney currently on this] just trying to research and understand the issue myself a little better from those that are most knowledgeable on the subject of firearms. Please accept my apologies if it is an issue I shouldn't have put forth here or if I asked too much.

[tursiops]

No apology needed. Just wanted to make sure you were distinguishing between facts and opinions.

[zerodown1]

I will preface this with, I am not a lawyer, you are advised to seek professional legal counsil. Having said that, if the person in question is not a legal virginia resident, it would be a violation of federal law for the Virginia resident to sell or tranfer a firearm to a non-resident.The non - resident person may also be in violation of several misdemeanor laws by staying and working in Virginia without registering the vehicle, changing residence,and tax violations.

[Oakes]

OK what if the person does pay taxes in VA, employed in VA, rents room in VA but has a house in another state where there are multiple vehicles and trailers. Maintains another state license until house sells. Throw in a VA resident CCW and VA voter ID card.
Now what?

[jdonovan]

get a lawyer.

[dorminWS]

OK what if the person does pay taxes in VA, employed in VA, rents room in VA but has a house in another state where there are multiple vehicles and trailers. Maintains another state license until house sells. Throw in a VA resident CCW and VA voter ID card.
Now what?

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This is not legal advice and is only a personal opinion as to what is more likely than not, but I'd say chances are this "person" may well pass muster as a Virginia resident who is not legally licensed to drive in VA. The "person" is also likely to get taxed on the house and other property that is in the other state in BOTH that state and in Virginia. And if I was a political operative who thought the "person" voted or would vote the wrong way, I'd probably challenge their vote, alleging their out-of-state house, room rather than a house in Virginia and out-of-state vehicles and the failure to get a Virginia Driver's license (assuming the "person" doesn't have both an out-of-state AND a Virginia license, which I'm pretty sure is illegal in Virginia - I' think you're supposed to surrender all other licenses when you get a VA license) showed they were a TRANSIENT in Virginia and their true domicile was in the other state (which would, I guess, raise the inference that the "person" was guilty of voter fraud).

[Oakes]

Agree you cannot have a driver's license in two states but you are legal to drive in any state w/ a valid state drivers license, reciprocity covers that. And you do not get hit w/ VA property tax on a house in another state, you pay the state where the house is located. There are quite a few people who work in this state w/ houses elsewhere that are having a hard time selling their homes in other states. Until they sell their houses they are stuck renting unless you can carry multiple houses. Then there are those who are well off and just have multiple houses.
The question is can this person buy a handgun in VA w/ their VA resident CCW?

[dorminWS]

Agree you cannot have a driver's license in two states but you are legal to drive in any state w/ a valid state drivers license, reciprocity covers that. And you do not get hit w/ VA property tax on a house in another state, you pay the state where the house is located. There are quite a few people who work in this state w/ houses elsewhere that are having a hard time selling their homes in other states. Until they sell their houses they are stuck renting unless you can carry multiple houses. Then there are those who are well off and just have multiple houses.
The question is can this person buy a handgun in VA w/ their VA resident CCW?

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(1) You are legal to drive in Virginia using a license from another state if you reside in that state, but if you are a Virginia resident, you have something like 60 days from the time you become one to get a VA license; otherwise you are not legal. Reciprocity extends to residents of other states currently present in Virginia; not to Virginia residents.

(2) There are other taxes besides property taxes. It sometimes happens that people that own real estate in two states to wind up paying estate taxes in both states when they die; with both states claiming the dead person was a resident of their state. The entire estate of an heir to the Campbell’s Soup fortune was eaten up in a situation like this. You may not have to be super-rich to worry about estate taxes; given the inflation in some places of the price of a home. Someone who owns one (or maybe one in each of two states) and what used to be a modest amount of other property may have a big enough estate to trigger state estate tax liability. There is also the same (or at least a similar) possibility on INCOME taxes. And the situs (legal location) of personal property is wherever the owner is. So if you are in Virginia, the situs of those vehicles and other items of personal property you have in the other state(s) is technically VIRGINIA. But if they are located in the other state, that state will expect to collect personal property taxes on them. Must the personal property be present in Virginia to be taxed? Ask the Commissioner of Revenue of the City of Alexandria. That buzzard once sent me a tax bill (and filed a lien against my VA tax refund) for personal property taxes on a Mercedes that had not been delivered when I bought it and was therefore not even in the country! It was still on the boat from Germany! And whether or not it was right, I couldn’t afford the time and trouble of going 440 miles to Alexandria to litigate about a few hundred dollars. So I let the @ssholes take my money. Point is, ambiguous residency can certainly have adverse tax consequences.

Answer about the handgun (in my opinion) is that if you have a valid Virginia CCW and some other acceptable ID you probably CAN buy a handgun. By that I mean you can probably get away with it and it may even be legal. If you told the dealer your driver’s license was issued in another state, HE might get spooked about whether you were a bona fide Virginia resident and not sell to you; but a lot of them probably would. But later on, someone might (particularly if they had some reason to pick apart the transaction or just to mess with you) question your status as a bona fide resident of the state of Virginia like I was talking about above on the vote challenge. And if it should be determined that you are not a bona fide resident, then your CCW was fraudulently obtained and is invalid. Is all or any of this likely? Probably not (I think) but I really don’t know. If you are physically present and working in Virginia and intend to remain here for the foreseeable future, it would be a good idea to just go ahead and get a Virginia driver’s license. Then it seems to me you don't even have to ask any questions; just go buy a gun.

[Oakes]

It's not so much of getting away with it vs logistics of trying to drive multiple antique cars w/ antique trailers that cannot go 55 mph for 15 min much less for 6 hrs each way. Also doing this w/o causing an accident/ engine damage just to get a VA inspection as storage is in another state for now until a home is bought in VA. Maybe a VA license and keep registration in the other state for the antique stuff.

[KCPhoenix]

Oakes - Antique vehicles in Virginia that are used just for showing and collection purposes are not required to take part in state inspections. These vehicles may not be used for daily transportation and should not be driven more than 250 miles from your residence, except when entered in a car show or similar event. All antique vehicles that are used for general driving purposes must undergo state inspection.

I don't know the year of your antique cars w/antique trailers, but this may be of interest in your case.