An HMRC notice of distraint is an enforcement action that enables HMRC with the power to seize company assets without having to petition to the court. This type of order is typically used by HMRC if a company has failed to pay their tax bills and if they have made several attempts to retrieve the debts in question, with no success.

If you have received a notice of distraint, or you’re worried about your company receiving one it is important to take it seriously and act quickly, or face having company assets seized. We can help give you guidance and support as to your options in dealing with a notice of distraint.

What is a notice of distraint?

Distraint is an enforcement action that enables HMRC to use its resources to pick up any remaining debts it might have waiting from businesses. The first task will be to send out CCJs and hope that money is pulled in through the first time of asking.

Who can distrain?

HMRC are the only creditor that has the right to levy distress and have goods removed from the business premises. The assets can then be sold at auction, using the proceeds to pay the debt first and any surplus is given back to the business. Distraint is no longer available to landlords who must follow a new procedure called CRAR (Commercial Rent Arrears Recovery).

Although there are strict regulation which HMRC must stick too, they do not need a court order to carry out a distraint.

The HMRC agent must always provide the debtor with a certificate showing who they are and who they represent. The agent cannot force entry but may enter the premises through an open window for example. Once in, they can use passive force, but they are not allowed to be violent or forceful.

The process for HMRC to levy a distraint

There is a strict process which HMRC must adhere too when a notice of enforcement is being served. It is a seven-day process from the receipt of the notice.

HMRC visit

A HMRC field officer will visit the business address (or home if the company registration is there). There will be plenty of notice given and the company should have first received CCJs, so they will know HMRC intend to visit.

Payment request

They will then ask for payment. If the debt is not paid, or cannot be paid, the officer will make an inventory of the company’s assets, including stock. This will be on a Controlled Goods Agreement or a C204 form.

Seizure of goods – Controlled Goods Agreement (CGA)

Only items that belong to the company can be listed on a CGA, which is made by a bailiff. It is an inventory of items which can be take. The person owning the debt will be asked to sign the agreement, after which they have a further seven days to pay the debt before the items listed are collected and sold at auction. If the agreement is not signed, an enforcement officer can arrange for the immediate removal of the items listed.

Check agreement

If there is agreement that everything on the list belongs to the company and agreement to the terms of the distraint, the C204 paperwork needs signing. Usually, the assets on the inventory list can stay at the business premises and for use in day to day trading. There is to be no selling, moving to a different location or giving away of these assets.

Payment deadline

The debtor is given five days to arrange payment. It may be feasible to arrange a Time To Pay Arrangement. This is a government initiative which is designed to help companies repay their HMRC debts. However, the company must act quickly if they are to have any chance of renegotiating payment terms. It can be difficult to secure a new TTP if the company has previously had one which failed.

 

If there is a refusal to sign C204, there is a danger of having assets listed on the inventory seized immediately.

Total payable

The total amount payable will include the cost of the distraint and the officers time. The C204 form will have a list of the costs and a breakdown of the amount owed. So, on top of the total debt that is repayable, creditors will charge for the time taken to employ debt collectors. A small debt can soon spiral into something a lot more.

Outcome

If full payment is not received or a TTP is not agreed, the HMRC officer will return. Upon their return, they will seize control of assets that are in their inventory, and they will then be sold at public auction.

What possessions/assets can be included in the distraint notice and inventory form?

For limited companies, only items which belong to the company can be listed on the CGA. Sole traders, who don’t have the protection of limited liability can have personal items included on the list, as the owner is personally liable.

The inventory might include:

• Company vehicles such as bans/lorries/company cars.
• Heavy plant such as diggers, dumper trucks.
• Machinery such as lathes, upright heavy-duty drills.
• Office equipment such as printers/fax machines/computers.
• Company office furniture such as desks and filing cabinets.
• Company stock.

What if there is a disagreement with the amount that is claimed as owed?

If there is a dispute regarding the amount owing, it’s something to discuss with the creditors initially. In particular with the officer that calls on you. However, negotiation will not be possible once they have entered the business premises.

What are the options?

If an HMRC officer has called, or there has been a threat of distraint, then there are options, but only by acting quickly. If a notice of enforcement has been issued by HMRC it would generally suggest the business cannot be saved, then the best option may be to go into creditors voluntary liquidation (CVL). This is so the risk of wrongful trading and the director’s personal liability is lowered.

Find out more about CVLs

If there is a genuine possibility that the company could continue trading, but is unable to afford the debt straight away, there are formal repayment plans available. These could be through a company voluntary arrangement (CVA) or administration. However, if you have a debt to HMRC it generally suggests that the company is on its last legs and you face the prospect of liquidation.

Find out more about CVAs

In summary

HMRC are a very powerful creditor and who carry more weight than a standard creditor. Tax is a lawful requirement, so HMRC will look to claim every bit of unpaid tax available. Distraint is a term used to describe the extra power that HMRC has over a typical creditor. However, they do have to go through the first procedure of trying to get the funds through a CCJ.

How we can help

If you’re worried about unpaid tax bills, or have received CCJs from HMRC, then the most important thing to do is to act fast. The faster you act, the greater chance you have of preventing a winding-up petition, or in some cases bailiff action. We offer advice and help, with free face-to-face consultations nationwide, helping your company move forward regardless of the situation.

Case Studies

ET Rowlands & Sons

Kelly Burton • Automotive • Administration

Assets from the well-known Telford road haulage contractor ET Rowlands & Sons, which has closed after nearly 60 years in business, are to be sold by auction online.

The firm, known for its striking red livery on its vehicles, provided road transport solutions for UK and continental Europe and operated a modern mixed fleet of rigid vehicles, tractor units and trailers.

Last week’s closure of the company, set up in 1958 by 87-year-old current director Mary Rowland’s father,  saw all 28 jobs made redundant after the company lost a major contract and potential hopes for a pre-pack sale were dashed.

Kelly Burton and Lisa Hogg from Yorkshire-based insolvency specialists Wilson Field were appointed joint administrators of ET Rowlands and Sons on 13 June at a meeting of members and creditors.

Wilson Field, have instructed valuers and asset management consultants Charterfields to dispose of the assets of the company, which operated a warehouse facility in Telford.

Vehicles and other items up for sale includes a fleet of 14 tractor units, seven rigid and flat HGVs by Scania, DAF and MAN, 14 curtainside and three flat back trailers, personalised numberplates including P7 ETR, P12 ETR, R4 ETR, S7 ETR, T2 ETR, V2 ETR, and 6 ETR, plant and office furniture. Other vehicles include a Vauxhall Movano 3.5T Dropside and Ford Transit T350 Panel Van.

Kelly Burton, director and insolvency practitioner at Wilson Field, said: “ET Rowlands & Sons was a well-established family run business that experienced loss of a major contract.

“The director came to Wilson Field for advice but regrettably the company entered administration and has been closed. As a consequence all 28 jobs have been lost. It is always sad to see a long-standing company go out of business with the loss of jobs.”

The online auction is now open and closes Tuesday July 4 from 12 noon. For further details visit www.charterfields.com

Care Homes Claims and MS2U

Kelly Burton • Financial Services • Pre-Pack Administration

Jobs have been preserved at a Leeds-based group of claims companies after they were bought out of administration in a pre-packed sale.

Care Home Claims and MS2U worked with customers who had been mis-sold financial products and services including PPI or had been over-charged on care home fees.

Joint administrators Kelly Burton and Lisa Hogg from Sheffield-based Wilson Field were called in by the directors when the group faced financial difficulties.

The business and assets of the companies were sold, for an undisclosed sum, to Acquire Inc Ltd. As part of the deal, 32 employees of an associated company transferred to the purchaser.

Group managing director Joseph Battle said:

“Problems were encountered as a result of an unprofitable contract and accrued HMRC arrears which lead to a severe cash flow shortage. We took professional advice and worked with the administrators to enable the business to continue as a going concern and preserve jobs of existing staff. Despite this being a very difficult time, the outcome means the business can continue.

“With the same management team, we can assure clients the same high level of service in the future.”

Kelly Burton, director and insolvency practitioner at Wilson Field, added:

“These companies ran into difficulty following the over calculation of work in progress on a contract, coupled with an accumulation of HMRC arrears. The directors contacted us for advice and have worked closely with us to achieve this result.

“We are pleased that the restructuring of these companies has resulted in the businesses continuing to trade via the successor business.”

Rooster Punk Ltd

Kelly Burton • Media & Entertainment • Pre-Pack Administration

Advisors from Wilson Field have rescued a London headquartered advertising agency after it was bought out of administration by the existing management team.

Rooster Punk Ltd was established in 2012 and specialised in providing creative content for technology and financial services brands to better interact with clients and customers.

The company, which traded from head offices at Queen Victoria Street in London with a second office in Clifton Down Road in Bristol, called in administrators from Sheffield-headquartered Wilson Field for formal insolvency advice.

The company had experienced significant growth since set up and posted profits each year up to and including October 2016.

However loss of funds due to a bad debt combined with the termination of customer contracts and rising business overheads had created cash flow problems.

Kelly Burton (pictured) and Lisa Hogg from Wilson Field were appointed as joint administrators on December 6 and concluded a pre-packaged sale of the business and assets to Rooster Punk Group Limited lead by the same management team of Rooster Punk Ltd.

All remaining nine staff at the time of the sale were saved and transferred to the new company under TUPE.

Kelly Burton, director and licensed insolvency practitioner at Wilson Field said:

“Wilson Field considered the company’s precarious financial situation, which was borne as a result of a number of factors including the Samsung contract under billing, loss of funds due to a bad debt from a start-up, termination of customer contracts and rising business overheads.

“Despite attempts to cut back overheads, including reducing staff numbers from a peak of 24 down to 10, the directors recognised the company’s precarious position and sought formal insolvency advice from Wilson Field, and advice on alternative options available.

“The pre-packaged sale has mitigated employee termination claims in the nature of wage arrears, accrued holiday pay, redundancy and pay-in-lieu of notice totalling £33,680.

“It has preserved the value in the company’s intangible assets, namely its goodwill and work in progress and maximised the value of the company’s trade debtors due to the continuity of service to the company’s customers by the successor business.”

Valuations were handled by Robert McArdle of David Currie & Co with legal services and advice from solicitors Irwin Mitchell LLP.

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