DMBM655760 - Enforcement action: distraint: carrying out a distraint: if the defaulter is not present when you call to distrain - responsible person

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Otherwise you should confirm that the address is that of the defaulter before proceeding further. You can do so by questioning whoever is in the premises or neighbouring premises.

A ‘responsible person’

Limited companies

In the case of limited companies it is generally an officer of the company in accordance with DMBM655750.

Individuals and partnerships

It is difficult to give a concise definition of a responsible person. It is generally someone who can confirm ownership of assets and is in a position to discuss the defaulter’s business or financial affairs and, preferably, is able to make payment. It depends on the individual relationship between them and the defaulter and it is often down to the judgement of the distraint officer as to whether you can continue.

If the person can answer satisfactorily whether goods are owned and paid for, they can sign a walking possession agreement even if they cannot make payment. You should, of course, make further contact with someone who can make payment and countersign the walking possession as soon as possible after the levy and in any event within 24 hours. So you should confirm the correct telephone number whenever possible.

It is unlikely that ordinary employees, for example a receptionist, a shop assistant or a waiter can accept any responsibility in a distraint action but it is quite acceptable for a debtor’s spouse or partner to take responsibility.

Guidance on confidentiality says that a spouse or partner is a 3r d party as far as the taxpayer’s tax affairs are concerned and it is often helpful to telephone the defaulter and obtain his authority for his spouse or partner to sign the WPA.

However, you are not discussing the defaulter’s tax affairs but asking about ownership of the goods. The distraint officer’s experience and judgement should tell them how much the spouse or partner knows about the taxpayer’s business.

If you are in any doubt leave a copy of the signed WPA, in a sealed envelope addressed to the defaulter and obtain their counter signature as soon as possible. A spouse or partner’s ability to sign a WP as a ‘responsible person’ should not be seen in any other context than distraint.

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First distraint call

If it is your first distraint call for the debt and the defaulter, or a responsible person, is not on the premises,

  • do not levy distraint
  • phone the defaulter immediately, that is when you are outside the premises, on a landline or mobile number.

Contact made

Where contact is made with the defaulter

  • confirm residence and/or business address
  • advise that you are ringing from the defaulter’s premises
  • confirm ownership of any visible assets
  • request the defaulter’s immediate return to make payment (or make suitable arrangements to do so later in the day)
  • advise that in the absence of payment you will call again to levy
  • warn the defaulter that if immediate payment is not made a further call will be made and distraint may be levied in their absence (Note: this does not mean that you will levy on goods in empty premises. A responsible person must still be present)
  • make further calls as necessary.

Contact not made

Where you are unable to contact the defaulter

  • leave a message (and your mobile phone number) asking for a return call ‘today’
  • leave a letter Dist 1 in a sealed envelope, warning the defaulter that if immediate payment is not made a further call will be made and distraint may be levied in their absence (Note: this does not mean that you will levy on goods in unattended premises. A responsible person must still be present).

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Further distraint calls

You should rarely make more than two distraint calls at any one address for the same debt.

If you are unable to levy distraint, you should consider an alternative method of enforcement (DMBM655550).