to that purpose; that the information sought is not already within the Commissioner's possession; and that the administrative steps required by the IRS Code have been followed." Id. at 57-58.
Petitioners first contend that the statute of limitations bars enforcement of the summons. As the Internal Revenue Code makes clear, no limitations period applies where, as here, a fraudulent or willful attempt to evade paying taxes is alleged. 26 U.S.C. §§ 6501(c)(1)-(2).
Petitioners next assert that the information sought is within the possession of the Commissioner. The government has the burden of proving that the information sought is not within its possession or that, as a practical matter, it is unable to obtain information within its possession. The affidavit of Gardella, which is affixed to the government's response to the petition, makes clear that the returns are no longer in the Commissioner's possession and have been destroyed. Without citing any support for this contention, petitioners claim that, because the government previously had the returns, it now possesses them. The Court of Appeals for the Third Circuit has, however, held that, when requested information is neither available nor accessible to the government because of routine destruction, it is not in the government's possession. United States v. First National State Bank of New Jersey, 616 F.2d 668, 674 (3d Cir. 1980).
I conclude that the government has met the requirements set forth in Powell, 379 U.S. at 57-58. I will, therefore, deny plaintiffs' motion to quash.
AND NOW, this 4th day of August, 1983, the court has considered plaintiffs' motion to quash and defendant's response thereto. For the reasons set forth in the accompanying memorandum, IT IS ORDERED that:
1. The petition to quash the summons is DENIED.
2. The government's motion for summary enforcement of a third-party recordkeeper summons is GRANTED.
3. The stay effected, pursuant to 26 U.S.C. § 7609(d)(2), by the filing of the instant petition is DISSOLVED.
4. The Clerk of the Court shall send a certified copy of this order to the summoned party, Touche Ross and Co., 1700 Market Street, Philadelphia, Pa. 19103.
5. Touche Ross and Co. shall comply with said summons at a reasonable date, time, and place to be determined by IRS.