Enforcement action: taking control of goods (TCoG): preparing for and undertaking the visit
Preparing for the taking control of goods visit
Once the BF has expired (and if no payment (in full) received or TTP agreement reached), the debt will be appropriate for a TCoG visit.
When making a ‘taking control’ visit, you must have:
- a copy of your authority to take control (Section 127 Finance Act 2008)
- identification (it is the debtor’s right, upon request, to see this and your authority)
- your tablet (or equivalent) or relevant papers.
It would also be useful to know what legislation covers TCoG; the legislation which allows a creditor to use TCoG as an enforcement action includes:
- Part 3 of the Tribunals, Courts and Enforcement Act 2007
- Schedule 12 to the Tribunals, Courts and Enforcement Act 2007
- The Taking Control of Goods Regulations 2013
- The Taking Control of Goods (Fees) Regulations 2014.
You should carry out a recovery proceedings (RP) check, specifically checking the taxpayer records (on IDMS and ETMP) to look for any payments or TTP arrangements and to ensure that the debt remains payable.
The taking control of goods visit
The visit to the premises generates a further fee (currently £235 plus 7.5 per cent of the outstanding principal debt which exceeds £1,500); this is payable whether or not the debtor is seen or assets are seized. You should therefore:
- calculate the further fee
- request payment of the outstanding debt plus all accrued fees
- amend/increase the fee work item on ETMP to include Fee 2 (the enforcement stage fee)
- ensure that the enforcement signal on IDMS is updated (This content has been withheld because of exemptions in the Freedom of Information Act 2000) .
Identifying the debtor and introducing yourself
When making a visit to take control of goods you should identify the debtor and introduce yourself. Common sense will dictate the precise sequence of identifying the defaulter and introducing yourself, but you should always make sure before you begin, that you are speaking to the debtor themselves or, if the debtor is not there, either a person:
- authorised by the debtor (authorised person)
- in apparent authority (a person on the premises where those premises are used wholly or partly to carry on a trade or business).
You must also make sure that any discussion takes place in private and cannot be overheard by third parties.
You do not need to see the debtor when taking control, whether at their premises or on the highway, as long as they have been given the Notice of Enforcement and the BF has expired before your visit. There is no requirement to verbally demand the sum owing before seizing the debtor’s goods; however, if the debtor is available, it may be practical to do so.
In the case of a Limited Company or PLC, you should always try to deal with an officer of the company such as a managing or financial director or company secretary or company accountant. That is someone who can:
- discuss the company’s business without breaching confidentiality
- confirm ownership of goods
- sign a Controlled Goods Agreement (CGA)
- preferably be in a position to arrange payment or enter into a TTP arrangement.
However, if that is not possible, then you can still take control of goods using an authorised person or a person in apparent authority.
Individuals, partnerships and unincorporated bodies
Ideally, you should deal with the debtor or partner, or in the case of clubs, charities or other unincorporated bodies, a committee member or trustee. Where these are not available, you may speak to an authorised person or a person who is apparently in charge provided you do not breach confidentiality. A person in ‘apparent authority’ is not necessarily able to confirm ownership and will not be in a position to discuss payment; however, they can still sign a CGA.
In order to reduce any confidentiality risks involved in dealing with a third party (such as someone in apparent authority), where possible, you should contact the debtor and ask them to attend or alternatively authorise the person in apparent authority to enter into a CGA. This will elevate the person in apparent authority to the status of an authorised person.