Legally Armed: July 2017

By Teresa G. Ficaretta, Esq. & Johanna Reeves, Esq.

DEWAT Firearms and How They Are Regulated Under Federal Law

We regularly receive inquiries from firearms collectors who have acquired a “DEWAT” and ask us for advice on how to register the firearm under the National Firearms Act (NFA). “DEWAT” is an acronym for “deactivated war trophy” and generally refers to firearms that WWII-era servicemen bring back to the United States as war trophies or souvenirs. There appears to be confusion in the firearms community on the significance of a DEWAT classification and whether registration documents with this label mean a particular firearm is lawfully registered and transferable under the NFA.

This article addresses the original DEWAT Program established by the United States in 1945, implementation of the program by the Internal Revenue Service (IRS) and how amendments to the statute in 1968 affect the registration status of firearms registered under the program.

I. Background

A. Statutory Background and History

Congress enacted the NFA, 26 U.S.C. Chapter 53, in 1934 to address firearms violence involving machineguns, short barrel shotguns, short barrel rifles, silencers and other concealable weapons. The NFA requires registration of all such firearms, approval of firearm transfers in advance and payment of a $200 transfer tax for each firearm transferred. As enacted in 1934, the statute allowed possessors of NFA firearms to register their firearms by completing a form and submitting it without tax as long as the submission was within 60 days of the date of enactment of the statute.¹

The NFA also included exemptions from the $200 transfer tax for any firearm which was “unserviceable” and which was transferred as a “curiosity or ornament.” The term “unserviceable” was not defined in the statute until 1968, as discussed below.

Significantly, the statute as enacted in 1934 defined the term “machinegun” as follows:

Machinegun—The term “machine gun” means any weapon which shoots, or is designed to shoot, automatically or semi-automatically, more than one shot, without manual reloading, by a single function of the trigger.

Thus, as enacted, the NFA did not regulate receivers for machineguns as “machineguns.”

In 1968, the Gun Control Act amended the NFA in a number of significant ways. First, the definition of “machinegun” was amended to specifically include the frame or receiver of such a weapon. A new section, 5841(d), was added providing that a person shown by the government’s NFA records as possessing a firearm on the effective date of enactment (October 22, 1968) is considered to have registered the firearm under the statute. This provision ensured that any person who, prior to October 22, 1968, submitted a DEWAT registration document (more on this below) would be considered as lawfully registering the firearm under the NFA. It is important to point out that starting in 1968, only manufacturers, importers and makers of NFA firearms are permitted to register the NFA firearms they manufacture, import or make. Mere possessors of firearms are not allowed to register.

Another amendment made in 1968 was the addition of the term “unserviceable firearm,” defined as a firearm incapable of discharging a shot by means of an explosive and incapable of being readily restored to a firing condition. The NFA was amended to provide that an unserviceable firearm may be transferred without payment of transfer tax. Provisions relating to “unserviceable firearms” remain in the NFA in 26 U.S.C. §§5845 and 5852(e).

Section 207(b) of the Gun Control Act of 1968 required the Secretary of the Treasury to establish an amnesty period allowing any person possessing a firearm subject to the NFA to register it during the 30-day amnesty program. This amnesty period was enacted as a response to a 1968 Supreme Court decision, United States v. Haynes, which declared portions of the statute unconstitutional. The Haynes decision held that the provisions of the NFA requiring mere possessors to register firearms violated the constitutional right against self-incrimination. The Court reasoned that by requiring such individuals to submit a form to the IRS admitting possession of an unregistered firearm provided the government with information that could be used to prosecute them. Congress responded to the Haynes decision by adding a provision to the NFA prohibiting the government’s use of information from registration or transfer applications as evidence in a criminal proceeding and by requiring the 30-day amnesty period to allow mere possessors to register firearms without penalty.

The IRS implemented the amnesty provisions of Section 207(b) and allowed registration of firearms by possessors for an initial 30-day period from November 1, 1968 to December 1, 1968. Firearms were registered during the amnesty period on IRS Form 4467. The agency allowed persons to register firearms beyond the December 1, 1968, cutoff date if they provided evidence they were out of the country during the 30-day period and unaware of the registration period or unable to register during the period. The IRS registered over 60,000 firearms during the 1968 amnesty period.

Finally, no discussion of machineguns is complete without a reference to 18 U.S.C. §922(o). This provision of the Gun Control Act was added by the Firearms Owners Protection Act of 1986 and generally prohibits the transfer or possession of a machinegun. Exceptions are provided for machineguns lawfully possessed prior to May 19, 1986 (the date of enactment), and for transfers to or by, or possession by or under, the authority of a federal, state or local government agency.

B. Establishment of the DEWAT Program

The Deactivated War Trophy Program (hereinafter “DEWAT Program”) was established in 1945 as a means of allowing returning servicemen to retain war trophies and affording the opportunity to effect NFA registration and control over subsequent transfers of properly deactivated firearms. The earliest evidence of the DEWAT Program the authors were able to locate is in War Department Circular 217, dated June 1, 1944. Section VIII of the circular indicates the purpose of the DEWAT Program was to improve the morale of military personnel by allowing them to retain war trophies. The circular allows importation of “small items of enemy equipment” except name plates removed from captured equipment, items which contain explosives and other items useful to the military. The circular requires that servicemen returning to the U.S. with war trophies in their possession have a certificate signed by a superior officer stating the bearer is authorized by the theater commander to retain as personal property articles listed on the certificate. The circular also indicates Customs officials were directed to accept a copy of the certificate to allow lawful importation of the war trophies.

Documents from the IRS issued in 1946 also indicate recognition of the DEWATS program. The IRS documents indicate that War Department Circular 217 was subsequently revoked when domestic law enforcement officials expressed concern about the policy and the threat allegedly deactivated machineguns presented to police. The 1946 documents indicate that even after the War Department Circular was revoked, numbers of firearms were
¹ In SAR Volume 21, Number 4, we published an article titled, “Short Barrel Rifles and Short Barrel Shotguns: Understanding Federal Regulations.” The article misstated that persons in possession of NFA firearms on the date the statute was enacted were required to pay a $200 registration tax. Indeed, only transfers of NFA firearms were subject to the $200 tax, as possessors who registered firearms with the IRS were not required to pay a tax. We apologize to readers for this erroneous statement.

brought into the U.S. notwithstanding revocation of the policy. The IRS document indicates the agency continued to work to secure registration of the “illegally imported captured enemy equipment” and to have such firearms rendered permanently inoperable to keep them out of the hands of “gangsters.”

C. Evolution of the DEWAT Program–IRS Rulings

Three documents issued by the IRS in the 1950s demonstrate the evolution of the DEWAT Program.

(1) Rev. Rul. 55-590

Rev. Rul. 55-590 held that firearms “in the war trophy class” that are deactivated under the supervision of an IRS investigator are “harmless ordnance curios” not regulated as “firearms” under the NFA. The ruling noted that of the many thousands of war trophy firearms registered under the program, many were rendered unserviceable by steel welding the breech end of the barrel closed and steel welding the barrel to the frame. Recall that the term “unserviceable” would not be defined in the NFA until 1968, leaving the IRS free to interpret the term as the agency saw fit. The ruling notes that these actions rendered the weapons harmless, did not destroy their trophy value and permitted subsequent tax-free transfer. The ruling also notes that such weapons, although not regulated as “firearms,” were required to be “notified” on Form 5 for each transfer. This makes no sense to the authors, because if the items are not “firearms,” then why was there a transfer application? In any event, Rev. Rul. 55-590 clarified the requirements for DEWAT firearms and held that if the items were registered and deactivated under the supervision of an IRS investigator, they are not “firearms” under the purview of the NFA.

Rev. Rul. 55-590 also states that any person possessing a “contraband firearm” who wishes to have the firearm transformed into a DEWAT should contact the nearest IRS office for the purpose of executing an application for registration on Form 1. The ruling states that after deactivation is complete, the word “DEWAT” will be added to the Form 1 description for the firearm, and the notation “removed from classification of a firearm by steel welding in the prescribed manner on (date)” will also be added.

(2) Rev. Rul. 57-227

This IRS ruling emphasized that only those firearms deactivated in the manner specified in Rev. Rul. 55-590 (under the supervision of an IRS investigator) are classified as a DEWAT not regulated under the NFA. The ruling states that all other firearms are regulated under the NFA notwithstanding their operating condition. The ruling notes that such firearms may be classified as “unserviceable firearms,” which exempts them only from transfer tax and not from the registration and transfer requirements of the statute.

(3) Rev. Proc. 58-8

This Revenue Procedure announced the termination of the DEWAT Program. On and after July 1, 1958, only a natural person who lawfully possesses a firearm would be allowed to transform the firearm into a DEWAT. The procedure further specified that the transformation of the firearm into a DEWAT would be allowed only by meeting the following conditions: (1) the firearm was registered under the NFA; (2) the firearm was made in accordance with the NFA; (3) the firearm was transferred in accordance with the NFA; or (4) the firearm was imported in accordance with the NFA. The procedure further states that after deactivation the IRS investigator who supervises the deactivation must endorse the Form 1, Form 4, Form 5 or Form 6, as the case may be, held by the owner. The procedure holds that such a DEWAT is not a “firearm” under the NFA, and subsequent transfers of the firearm need not be approved by the IRS. Finally, the procedure held that any unregistered firearm subject to the NFA will be considered contraband subject to forfeiture to the United States.

II. How are DEWAT Firearms Regulated?

The history outlined above indicates the twists and turns taken by the DEWAT program and raises a number of questions about firearms that were ostensibly registered as “DEWAT” from 1945-1958. We list those questions and our answers below. Please note that our answers are neither intended to be, and should not be, construed as legal advice nor do they form an attorney-client relationship.

1. Are machineguns registered as DEWAT on a Form 1, Form 4, Form 5 or Form 6 lawfully registered under the NFA?

Machineguns lawfully registered under the DEWAT program from 1945-1958 that are accompanied by Forms 1, 4, 5 or 6 indicating inspection by an IRS investigator are considered properly registered to the person whose name is listed as the registrant on such form under the NFA. This is because of the language of 26 U.S.C. §5841(d) providing that any person shown as possessing a firearm under NFA records in existence on October 22, 1968, is considered to have registered the firearm.

If the DEWAT was transferred after registration (without a transfer application, because the IRS did not consider DEWAT firearms to be “firearms”) to any other person, then ATF considers it to be lawfully registered only if the machinegun was again registered under the 1968 amnesty program. This is because the amendment of the definition of “machinegun” in 1968 to include the frame or receiver of such a firearm made it clear that even deactivated DEWAT firearms are included within the NFA and must be registered. The transferee would not be protected by the language of §5841(d) because NFA records did not show that person as possessing the firearm on October 22, 1968. Unfortunately, ATF will recognize the validity of a DEWAT registration only if the firearm remains in the hands of the original registrant.

Assuming the DEWAT was registered during the 1968 amnesty, then all transfers must have been approved in advance by ATF, and the current possessor must have registration documents indicating the machinegun is registered to him or her.

2. What about firearms other than machineguns, such as short-barrel rifles? If lawfully registered under the DEWAT program, are DEWAT rifles registered under the NFA?

All NFA firearms, including short-barrel rifles, properly deactivated and registered under the DEWAT program are considered properly registered to the person whose name is listed as the registrant on the registration form. However, if the short barrel rifle was transferred to another person, it is not considered registered unless the DEWAT was again registered during the 1968 amnesty program. Even though there was no change in the definition of “short barrel rifle” in the NFA, ATF will not recognize the registration unless the rifle remains in the hands of the original DEWAT registrant.

3. Assuming a DEWAT machinegun is lawfully registered to the possessor, is it considered a “grandfathered” machinegun so it is not subject to 18 U.S.C. §922(o)?

Yes.

4. May lawfully registered DEWAT firearms be transferred to another person?

Yes. The firearms may be transferred free of tax as “unserviceable firearms” through submission of ATF Form 5. All transfers must be approved by ATF in advance.

5. If an individual has a DEWAT firearm lawfully registered to him, may the firearm be reactivated?

Yes. ATF requires that a Form 1 application be submitted prior to reactivation of a DEWAT firearm. ATF will also permit a qualified manufacturer to reactivate a DEWAT and report its manufacture on Form 2. This would require a Form 4 tax-paid transfer from the manufacturer to the owner of the reactivated firearm. If the firearm is a machinegun, ATF considers it to be grandfathered so it is not subject to the restrictions of 18 U.S.C. §922(o).

III. Conclusion

Firearms collectors given the opportunity to purchase an alleged DEWAT firearm should proceed with caution. Even if registration documents appear to match the firearm, ATF may or may not recognize the registration documents as valid. If the alleged DEWAT is no longer in the hands of the original registrant and was not again registered during the 1968 amnesty period, the firearm could be contraband. If so, possessing the firearm could place the possessor in violation of the law. Individuals considering purchase of DEWAT firearms would be well advised to contact ATF’s National Firearms Act Branch for guidance or discuss the transaction with qualified counsel.

The information contained in this article is for general informational and educational purposes only and is not intended to be construed or used as legal advice or as legal opinion. You should not rely or act on any information contained in this article without first seeking the advice of an attorney. Receipt of this article does not establish an attorney-client relationship.?

About the Authors

Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (www.reevesdola.com). For more than 10 years she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls. Since 2011, Johanna also has served as Executive Director for the FireArms Import/Export Roundtable (F.A.I.R.) Trade Group (http://fairtradegroup.org). In 2016, Johanna was appointed by the U.S. Department of State, Bureau of Political-Military Affairs to serve on the 2016-18 Defense Trade Advisory Group (DTAG).

Teresa Ficaretta is an expert on ATF regulations under the Gun Control Act, the National Firearms Act, the Arms Export Control Act and Federal explosives laws. Before joining Reeves & Dola in 2013, Teresa served as legal counsel to ATF for 26 years, followed by two years as Deputy Assistant Director in Enforcement Programs and Services. Teresa was elected partner to Reeves & Dola in January 2016.

Both Johanna and Teresa can be reached at 202-683-4200, or at info@reevesdola.com.