UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4144

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

THOMAS J. GENA, a/k/a Thomas Gena,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Columbia. Cameron McGowan Currie, District

Judge. (3:05-cr-00303-CMC)

Submitted: November 30, 2007 Decided: December 17, 2007

Before TRAXLER, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Scott W. Gross, Macomb, Michigan, for Appellant. Reginald I.

Lloyd, United States Attorney, Anne Hunter Young, Assistant United

States Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
*

All but twenty counts were dismissed on motion of the

Government prior to trial. 

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PER CURIAM:

Thomas J. Gena was named in a forty-four count indictment

arising out of his operation of a tax return preparation business

called “Tax Doctors,” in Columbia, South Carolina.* The indictment

charged that, between 2000 and 2004, Gena aided and assisted in the

preparation of fraudulent tax returns for the tax years 1999, 2000,

2001, 2002, and 2003. The Government presented evidence

establishing that Gena prepared at least twenty-six tax returns

claiming dependent exemptions and earned income tax credits which

the taxpayer/clients were not entitled to claim. Based on this

evidence, the jury convicted Gena on all twenty remaining counts.

The district court sentenced him to twenty-seven months

imprisonment. Gena noted a timely appeal.

Effective for tax years beginning after December 31,

1999, a “qualifying child,” for purposes of the Earned Income Tax

Credit includes “an eligible foster child of the taxpayer.” 26

U.S.C. § 32(c)(3)(B)(i)(III). An “eligible foster child” means an

individual who “is placed with the taxpayer by an authorized

placement agency” and “the taxpayer cares for as the taxpayer’s own

child.” 26 U.S.C. § 32(c)(3)(B)(iii). Gena argues that the term

“authorized placement agency” is not defined in the relevant

sections of the Internal Revenue Code and, therefore, the statute
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is unconstitutionally vague. Our review of the legislative history

of the Ticket to Work and Work Incentives Improvement Act of 1999

reveals that the term “authorized placement agency” means a state

agency or one of its subdivisions or a tax-exempt child placement

agency licensed by the state. We also find that the plain meaning

of the statute would not include within its definition of “eligible

foster child” a taxpayer’s fiancé, boyfriend, girlfriend, roommate,

siblings, parents or grandparents--each of which were claimed as

foster children on the returns prepared by Gena. 

Gena also challenges the sufficiency of the evidence to

support his convictions. To obtain a conviction under I.R.C.

§ 7206(2), the government must prove the following elements beyond

a reasonable doubt: “(1) the defendant aided, assisted, or

otherwise caused the preparation and presentation of a return; (2)

that the return was fraudulent or false as to a material matter;

and (3) the act of the defendant was willful.” United States v.

Aramony, 88 F.3d 1369, 1382 (4th Cir. 1996) (internal citation

omitted). We find that the evidence presented by the Government

supported Gena’s convictions. The Government established that Gena

personally prepared at least twenty-six tax returns, each

containing materially false information. Moreover, the evidence

was sufficient to support an inference of willfulness. Gena

personally interviewed his clients and therefore knew, or should

have known, that the individuals he listed as foster children on
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their returns did not qualify as such for purposes of the earned

income credit. Accordingly, we affirm Gena’s conviction. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process. 

AFFIRMED