Cawdor
Member
I'm not saying that this is the law, but here is a line of reasoning.
Firearm is purchased from an FFL in another state.
A sale consists in the passing of title from the seller to a buyer for a price. UCC 2-106.
An FFL shall not sell, deliver, or transfer a firearm to any other person who is not licensed who has not passed a NICS check. 27 CFR 178.102.
A purchaser acquires all title which his transferor had or had power to transfer. UCC 2-403.
Conclusion: An out of state FFL does not have the power to transfer title to an unlicensed person until after the unlicensed person passes the NICS check in his home state.
A "sale" by an FFL in one state to an unlicensed person in another state would be a "sale on approval." UCC 2-326.
Under a sale on approval unless agreed otherwise, title does not pass to the buyer until acceptance. UCC 2-327.
The buyer cannot accept until after he passes a NICS check in his home state.
Conclusion: Title on the firearm does not pass to the buyer until after the buyer passes the NICS check in his home state.
"Sale" or "purchase" means a transfer of title or possession of tangible personal property when done or performed for consideration. Texas 151.005.
"Tangible personal property" means personal property that can be seen, weighed, measured, felt, or touched or that is perceptible to the senses in any other manner. TX 151.009.
"Taxable item" means tangible personal property and taxable services. TX 151.010.
A tax is imposed on each sale of a taxable item in this state [Texas]. TX 151.051
Conclusion: A firearm is tangible personal property.
Conclusion: Since title passed to the buyer in his home state, a sale has occurred in his home state.
Conclusion: Since a firearm is tangible personal property, a taxable sale has occurred.
Conclusion: Sales tax is due on the firearm.
Agency is a relation created by express or implied contract or by law, whereby one party delegates the transaction of some lawful business with more or less discretionary power to another, who undertakes to manage the affair and render to him an account thereof.
If a unlicensed person wants to purchase a firearm from an FFL in his place of business, by law the unlicensed person must pass a NICS check before the firearm can be sold. If a unlicensed person from out of state wants to purchase a firearm from an FFL, the FFL must by law send the firearm to an FFL in the unlicensed person's home state. Before the sale can be completed, by law the unlicensed person must pass a NICS check conducted by the FFL in the unlicensed person's home state.
Conclusion: By law, the out of state FFL delegates the transaction of lawful business (conducting the NICS check, which he does for sales in his state) to the FFL in the unlicensed person's state, making the unlicensed person's FFL the agent of the out of state FFL.
The owner or former owner of tangible personal property, a factor of the owner or former owner, or an agent of the owner, former owner, or factor shall collect the sales tax and add the amount of the tax to the sales price of the tangible personal property if the person delivers the property to a consumer in this state or to another person for redelivery to a consumer in this state under a sale of the property that is not a sale for resale and that is made by a seller not engaged in business in this state. TX 151.052.
Conclusion: Since the unlicensed person's FFL is an agent of the out of state FFL, the unlicensed person's FFL shall collect the sales tax.
As to not telling the FFL that it was a purchase, all the local FFL has to do is call the out of state FFL or individual. Lying to avoid the payment of a sales or use tax may be a crime.
Firearm is purchased from an FFL in another state.
A sale consists in the passing of title from the seller to a buyer for a price. UCC 2-106.
An FFL shall not sell, deliver, or transfer a firearm to any other person who is not licensed who has not passed a NICS check. 27 CFR 178.102.
A purchaser acquires all title which his transferor had or had power to transfer. UCC 2-403.
Conclusion: An out of state FFL does not have the power to transfer title to an unlicensed person until after the unlicensed person passes the NICS check in his home state.
A "sale" by an FFL in one state to an unlicensed person in another state would be a "sale on approval." UCC 2-326.
Under a sale on approval unless agreed otherwise, title does not pass to the buyer until acceptance. UCC 2-327.
The buyer cannot accept until after he passes a NICS check in his home state.
Conclusion: Title on the firearm does not pass to the buyer until after the buyer passes the NICS check in his home state.
"Sale" or "purchase" means a transfer of title or possession of tangible personal property when done or performed for consideration. Texas 151.005.
"Tangible personal property" means personal property that can be seen, weighed, measured, felt, or touched or that is perceptible to the senses in any other manner. TX 151.009.
"Taxable item" means tangible personal property and taxable services. TX 151.010.
A tax is imposed on each sale of a taxable item in this state [Texas]. TX 151.051
Conclusion: A firearm is tangible personal property.
Conclusion: Since title passed to the buyer in his home state, a sale has occurred in his home state.
Conclusion: Since a firearm is tangible personal property, a taxable sale has occurred.
Conclusion: Sales tax is due on the firearm.
Agency is a relation created by express or implied contract or by law, whereby one party delegates the transaction of some lawful business with more or less discretionary power to another, who undertakes to manage the affair and render to him an account thereof.
If a unlicensed person wants to purchase a firearm from an FFL in his place of business, by law the unlicensed person must pass a NICS check before the firearm can be sold. If a unlicensed person from out of state wants to purchase a firearm from an FFL, the FFL must by law send the firearm to an FFL in the unlicensed person's home state. Before the sale can be completed, by law the unlicensed person must pass a NICS check conducted by the FFL in the unlicensed person's home state.
Conclusion: By law, the out of state FFL delegates the transaction of lawful business (conducting the NICS check, which he does for sales in his state) to the FFL in the unlicensed person's state, making the unlicensed person's FFL the agent of the out of state FFL.
The owner or former owner of tangible personal property, a factor of the owner or former owner, or an agent of the owner, former owner, or factor shall collect the sales tax and add the amount of the tax to the sales price of the tangible personal property if the person delivers the property to a consumer in this state or to another person for redelivery to a consumer in this state under a sale of the property that is not a sale for resale and that is made by a seller not engaged in business in this state. TX 151.052.
Conclusion: Since the unlicensed person's FFL is an agent of the out of state FFL, the unlicensed person's FFL shall collect the sales tax.
As to not telling the FFL that it was a purchase, all the local FFL has to do is call the out of state FFL or individual. Lying to avoid the payment of a sales or use tax may be a crime.
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