ATTORNEYS FOR PETITIONERS ATTORNEYS FOR RESPONDENT: and FOR AMICI CURIAE INDIANA MARILYN S. MEIGHEN RETAIL COUNCIL, INC. and ATTORNEY AT LAW INDIANA APARTMENT Carmel, IN ASSOCIATION, INC.: 1 MELISSA G. MICHIE BRIAN A. CUSIMANO BRENT A. AUBERRY ATTORNEY AT LAW BENJAMIN A. BLAIR Indianapolis, IN ABRAHAM M. BENSON FAEGRE DRINKER RIDDLE & REATH LLP FILED Indianapolis, IN Sep 30 2024, 4:03 pm
CLERK Indiana Supreme Court Court of Appeals and Tax Court
IN THE INDIANA TAX COURT
THOMAS & NANCY CRANDALL, ) ) Petitioners, ) ) v. ) Case No. 23T-TA-00004 ) BARTHOLOMEW COUNTY ASSESSOR, ) ) Respondent. )
ON APPEAL FROM A FINAL DETERMINATION OF THE INDIANA BOARD OF TAX REVIEW
FOR PUBLICATION September 30, 2024
MCADAM, J.
1 After the appeal was filed and all briefing was completed, the Petitioners’ original counsel, Melissa G. Michie, joined the law firm representing the Amici. Following this, Ms. Michie entered an appearance on behalf of the Amici Curiae and attorneys from that firm entered appearances on behalf of the Petitioners. See Crandall v. Bartholomew Cnty. Assessor, Case No. 23T-TA- 00004 (Ind. Tax Ct. June 21, 2024) (order granting the Petitioners’ and the Amici’s unopposed request to have their chosen firm represent them during the oral argument).) Since 2009, Indiana’s burden-shifting statute has required assessors to bear the
burden of proof in property tax appeals when a property’s assessed value increases by
more than 5% over the prior year. The Legislature revisited this statute in 2022,
repealing it and replacing it with a revised version applicable to appeals filed after March
21, 2022. This case concerns the limited set of cases subject to the repealed version of
the burden-shifting statute that were pending at the time the repeal took effect. Last
year, this Court determined that the repealed version continued to apply to
administrative appeals pending before the Indiana Board of Tax Review when the
legislative enactment took effect. The parties in this case disagree whether that earlier
decision should be applied to appeals, like those in this case, that were pending but not
yet heard on the merits by the Board before the effective date of the legislative
enactment. After review, the Court reaffirms the earlier opinion and holds that it fully
resolves this case.
FACTS AND PROCEDURAL HISTORY
Thomas and Nancy Crandall own a home situated on nearly an acre of lakefront
property on Grandview Lake in Columbus, Indiana. The Bartholomew County Assessor
initially assigned an assessed value of $1,608,900 to their property for 2020. Later, after
a review of all Grandview Lake properties, the Assessor increased this assessment to
$1,888,800 for 2020 and assessed the property at $1,939,800 for 2021.
The Crandalls appealed each year’s assessment, first to the Bartholomew
County Property Tax Assessment Board of Appeals on June 15, 2021, and then to the
Indiana Board on January 6, 2022. The Board conducted a hearing on the merits on
October 6, 2022, after denying the Crandalls’ motion to vacate the hearing date due to
2 uncertainty over which version of the burden-shifting statute applied to their appeals –
Indiana Code § 6-1.1-15-17.2 (“Section 17.2”), repealed on March 21, 2022, or Indiana
Code § 6-1.1-15-20 (“Section 20”), enacted on the same date.
At the hearing, the parties grappled with the question of which version of the
burden-shifting statute should govern, ultimately focusing on Section 17.2, agreeing that
Section 20 did not apply. The central point of contention then became whether Section
17.2 applied to the Crandalls’ case and, if so, its implications. The Crandalls argued that
Section 17.2 remained applicable despite its repeal, as their Indiana Board appeals
were filed months before the statute’s repeal, among other factors. The Crandalls chose
not to present any independent valuation evidence and instead argued that both
assessments should revert to the initial 2020 valuation of $1,608,900 because the
Assessor failed to meet her burden under Section 17.2.
The Assessor opposed the Crandalls’ position and argued that Section 17.2 did
not apply due to the timing of the Indiana Board hearing. She asserted that the hearing
on the merits was the procedural event that triggered Section 17.2’s application, a
principle previously advanced by the Indiana Board, and that because the hearing
occurred after the statute’s repeal, the statute no longer applied. She therefore
contended that the Crandalls’ assessments should remain unchanged because they
presented no evidence of value and her appraisal evidence supported the current
assessments.
The Indiana Board’s final determination largely aligned with the Assessor’s
position. It concluded that, because Section 17.2 had been repealed before the hearing
on the merits, it did not apply to the Crandalls’ appeals and the burden of proof rested
3 with the Crandalls, not the Assessor. The Board ultimately determined that the
appraisals supported the assessments and, accordingly valued the Crandalls’ property
at $1,830,000 for 2020 and $1,940,000 for 2021 to align with the appraisals.
The Crandalls then initiated this original tax appeal, arguing that the Board’s final
determination was contrary to law because the Assessor should have borne the burden
of proof during the administrative proceedings under Section 17.2. After the parties filed
their briefs addressing the merits, this Court issued a decision in a separate case,
holding that Section 17.2 continued to apply to administrative appeals pending before
the Board as of its repeal date of March 21, 2022. See Elkhart Cnty. Assessor v.
Lexington Square, LLC, 219 N.E.3d 236, 243-46 (Ind. Tax Ct. 2023). The Crandalls
subsequently sought leave to submit additional briefing on the impact of Lexington
Square on their case. The Court granted their request, established a supplemental
briefing schedule, and held oral argument.
STANDARD OF REVIEW
This Court’s review of Indiana Board decisions is governed by Indiana Code §
33-26-6-6, the provisions of which closely mirror those controlling judicial review of
administrative decisions governed by Indiana’s Administrative Orders and Procedures
Act (“AOPA”). Compare IND. CODE § 33-26-6-6(e) (2024) with IND. CODE § 4-21.5-5-
14(d) (2024). Under Indiana Code § 33-26-6-6, parties seeking to overturn a final
determination of the Indiana Board bear the burden of demonstrating its invalidity. I.C. §
33-26-6-6(b). Challengers must demonstrate that they have been prejudiced by a final
determination of the Indiana Board that is arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; contrary to constitutional right, power, privilege,
4 or immunity; in excess of or short of statutory jurisdiction, authority, or limitations;
without observance of the procedure required by law; or unsupported by substantial or
reliable evidence. I.C. § 33-26-6-6(e).
DISCUSSION
Prior to 2009, the burden of proof in property tax assessment challenges
invariably fell on the taxpayer. See, e.g., Orange Cnty. Assessor v. Stout, 996 N.E.2d
871, 873 (Ind. Tax Ct. 2013). Then, in 2009, the Legislature introduced a burden-shifting
provision, shifting the burden to an assessing official when an assessment increased by
more than 5% from the previous year. See Pub. L. No. 182-2009(ss), § 111, 2009 Ind.
Acts 2005, 2374-78. Since its enactment, this provision has been amended or repealed
and reenacted four times, excluding the most recent adjustments in 2022. Each iteration
has retained the burden-shift and the 5% threshold as the trigger. See Pub. L. No. 172-
2011, §§ 30, 32, 2011 Ind. Acts 1969, 2010-14, 2016; Pub. L. No. 6-2012, §§ 42, 44,
2012 Ind. Acts 31, 78; Pub. L. No. 97-2014, § 2, 2014 Ind. Acts 1117, 1117-19; Pub. L.
No. 121-2019, § 13, 2019 Ind. Acts 1491, 1518-19. As of 2014, the provision has also
included guidance on calculating the 5% increase, exemptions for increases due to
certain changes to the property or its use, and a reversionary clause requiring the
assessment to revert to the prior year assessment if the burden of proof is not met. See
Pub. L. No. 97-2014, § 2.
In 2022, the Legislature enacted a fifth set of changes to the burden-shifting
provision as part of a single legislative enactment – House Enrolled Act 1260 (“HEA
1260”). Pub. L. No. 174-2022, §§ 32, 34, 2022 Ind. Acts 2298, 2346-49. As part of that
legislation, the General Assembly simultaneously repealed Section 17.2 (the old
5 burden-shifting framework) and enacted Section 20 (the new burden-shifting framework)
as its replacement. Id. Both actions took effect simultaneously on March 21, 2022. Id.
(indicating that both actions were “effective upon passage”). The legislation included a
provision in the newly added section (Section 20) specifying that it would “appl[y] only to
appeals filed after the effective date of [the legislation]” but was silent about the
continued applicability of Section 17.2. See Pub. L. No. 174-2002, § 34. The new
statute (Section 20), consistent with previous amendments, retains the central elements
of the burden-shifting provision, including the 5% threshold, the burden-shifting
requirement, and the reversionary clause specifying that an assessment reverts to the
prior year assessment if the burden of proof is not met. See Lexington Square, 219
N.E.3d at 242. At the same time, Section 20 “eliminates the requirement that to meet
[the burden of proof], the assessor’s evidence must ‘exactly and precisely’ conclude to
the original assessment” and “allows the Indiana Board to determine the correct
assessment based on evidence presented by both parties[.]” Id. (emphasis omitted).
This Court first examined the implications of HEA 1260’s simultaneous repeal
and replacement of the burden-shifting statute in 2023 in the Lexington Square case.
See id. at 243-46. The issue there was whether Section 17.2 applied to appeals
pending before the Board at the time of its repeal or whether the repeal created a gap,
leaving no burden-shifting statute applicable to those pending administrative
proceedings. See id. at 243. The assessor in that case argued, among other things, that
Section 17.2 ceased to apply to the Indiana Board’s proceedings on the date of its
repeal, just three days before the Board issued its final determination, because HEA
1260 lacked a saving clause expressing the Legislature’s intent as to pending cases. Id.
6 The Court rejected the assessor’s arguments, holding that Section 17.2 applied
to appeals pending before the Board at the time it was repealed. See id. at 246. In
reaching its conclusion, the Court relied on long-standing precedent that “an express
savings clause is not required to prevent the destruction of rights existing under a
repealed statute if the Legislature’s intention to preserve and continue those rights is
otherwise clearly apparent.” Id. at 243-44 (emphasis and citations omitted). The Court
then looked to ordinary rules of statutory construction and concluded that, when Section
17.2 and Section 20 are construed together, “it is clearly apparent that the Legislature
simply intended that Indiana Code § 6-1.1-15-17.2 would not apply to appeals filed after
its repeal date of March 21, 2022.” See id. at 244 (emphasis omitted). Thus, the Court
concluded, Section 17.2 “continued to apply to appeals . . . that had been filed before
the repeal of [Section 17.2] and were still pending” at the time the repeal took effect. Id.
The Court found “reinforce[ment]” for its conclusion in the principle that legislation
generally operates prospectively, noting that HEA 1260 did not include “explicit
language . . . indicating an unequivocal and unambiguous retrospective intent” to apply
the repeal of Section 17 retroactively. Id. at 244, 245 (internal quotation marks and
citation omitted). To apply the repeal retroactively, the Court noted, would require “[a]
re-do in every single one of the still-pending cases . . . to provide taxpayers an
opportunity to develop and implement new litigation strategies aligned with the new
allocation of the burden of proof.” See id. at 246.
On its face, Lexington Square supplies the answer in this case. It expressly
considered whether Section 17.2 should apply to cases pending at the time HEA 1260’s
repeal of Section 17.2 took effect. Here, the Crandalls’ appeals had been pending for
7 more than two months before the March 21, 2022, repeal date, and thus Lexington
Square directly applies. The Assessor contends, however, that a different result is
warranted because Lexington Square leaves room for further analysis regarding the
applicability of Section 17.2 to cases like this one in which a hearing was not conducted
prior to the repeal. She urges the Court to confine Lexington Square to its facts (1)
because the decision failed to identify any vested right sufficient to avoid application of
the so called “obliteration doctrine” and (2) because she contends that Section 17.2 is a
procedural law and therefore any changes to it apply to pending appeals. The Assessor
maintains that “Lexington Square cannot be binding when this case raises different
issues and arguments calling for analyses not previously undertaken.” (Resp’t Sur-
surreply Br. at 6.) Consideration of any of these points, she contends, compels a
different conclusion here, where the hearing on the merits had not occurred before the
repeal of Section 17.2, and the Court should hold that Section 17.2 does not apply,
leaving the burden of proof with the taxpayer.
Lexington Square did not require the identification of a vested right
The Assessor first argues that Lexington Square “inharmoniously . . . concludes
that repealing [Section] 17.2 extinguished a vested right of taxpayers” without providing
any “substantive explanation or argument . . . about the existence of [that] vested right.”
(Resp’t Sur-surreply Br. at 5.) She asserts that the decision “does not engage in an
analysis of what vested rights actually are much less why any right to a particular
process is created by a burden-shifting law.” (Resp’t Sur-surreply Br. at 7-8.) As a
result, she concludes that Lexington Square is not binding in this case.
The Assessor, however, misapprehends the reasoning of Lexington Square. In
8 that case, the Court considered two related doctrines for determining the effect of a
repealed statute on pending matters. The first is the so-called “obliteration doctrine,”
which holds that “the repeal of a statute without a savings clause, where no vested right
is impaired, completely obliterates it, and renders the same as ineffective as if it had
never existed.” Lexington Square, 219 N.E.3d at 243 (collecting cases) (internal
quotation marks, brackets, and footnote omitted). The second is an exception to the
first, which holds that “an express savings clause is not required to prevent the
destruction of rights existing under a repealed statute if the Legislature’s intention to
preserve and continue those rights is otherwise clearly apparent.” Id. at 243-44
(collecting cases) (emphasis omitted). The Court examined whether the Legislature’s
intent was clearly apparent based on the text of HEA 1260 and concluded that it was.
See id. at 244 (“The best evidence of legislative intent is found in the actual statutory
language at issue. . . . [The] statutory language must be construed in accordance with
the entire context of the act in which it is a part and also in harmony with any other
statutes that apply to the same subject matter.”) (citations omitted). It determined that,
based on the entirety of the legislative enactment, the Legislature did not intend to
rescind the statutory rights created by Section 17.2 as to pending cases. Id.
The Court did not determine that Section 17.2 continues to apply to pending
appeals because not applying it would impair a vested right. The “rights” that the Court
refers to in Lexington Square are the statutory rights created by Section 17.2 (e.g., the
taxpayer’s right to have the burden of proof shift to the assessing official in any review
or appeal of an assessment increasing by more than 5% over the prior year, the right to
require the assessor to prove the correct assessment, and the right to have the
9 assessment revert to the prior year assessment if the assessor fails to meet the burden
of proof). See id. at 241-44. When viewed through the legal framework applied by the
Court in Lexington Square, it is apparent that no vested right analysis was necessary to
support the Court’s conclusion. Consequently, the Assessor’s complaints regarding the
lack of substantive explanation about vested rights do not undermine Lexington
Square’s applicability.
Section 17.2 is not a procedural law
The Assessor next argues that Lexington Square does not consider whether
Section 17.2 is a procedural or substantive law. (See Resp’t Sur-surreply Br. at 6-7.)
She contends that Section 17.2 is procedural in nature and that “any changes to [such
laws] apply even when they occur during the pendency of a case.” (Resp’t Sur-surreply
Br. at 7.) She concludes that, as a procedural law, the repeal of Section 17.2 applies
immediately regardless of other considerations.
The Assessor correctly notes that a “[p]rocedural law ‘prescribes the method of
enforcing a right or obtaining redress for the invasion of that right’ while [a] substantive
law ‘creates, defines, and regulates rights.’” (Resp’t Sur-surreply Br. at 6 (quoting
Morrison v. Vasquez, 124 N.E.3d 1217, 1222 (Ind. 2019)).) However, the Indiana
Supreme Court has recognized that “[e]xcept at the extremes, the terms ‘substance’
and ‘procedure’ precisely describe very little except a dichotomy, and what they mean in
a particular context is largely determined by the purposes for which the dichotomy is
drawn.” Church v. State, 189 N.E.3d 580, 589 (Ind. 2022) (quoting Sun Oil Co. v.
Wortman, 486 U.S. 717, 726 (1988)) (internal quotation marks omitted). “And even if
statutes establishing substantive rights are ‘packaged in procedural wrapping,’ that does
10 not alter their true nature.” Id. (quoting State ex rel. Loyd v. Lovelady, 840 N.E.2d 1062,
1064 (Ohio 2006)). To that end, the analysis requires more than “a mechanical test that
simply stops when it finds a process[.]” Id. at 590 (citation omitted). The analysis
requires “a more thoughtful . . . look[] at the statute’s predominant objective.” Id. (citation
omitted). “If the statute predominately furthers judicial administration objectives, the
statute is procedural. But if the statute predominately furthers public policy objectives
involving matters other than the orderly dispatch of judicial business, it is substantive.”
Id. (internal quotation marks and citation omitted).
Under this test, Section 17.2 is a substantive law and embodies a legislative
policy judgment that assessment increases greater than 5% are unique and require
heightened scrutiny. Rather than prohibit such increases outright, it reverses the typical
course of an appeal whereby the taxpayer must disprove the assessment and instead
requires the assessor to justify increases greater than 5%. IND. CODE § 6-1.1-15-17.2(a)
(2022) (repealed 2022). Section 17.2 requires the assessor to prove that the
assessment is “correct.” I.C. § 6-1.1-15-17.2(b). The assessor’s burden to prove
correctness under Section 17.2 is heavy, requiring the assessor to not only provide
evidence of value in the first instance but also to prove that the assessment is “exactly
and precisely” correct. See Southlake Indiana, LLC v. Lake Cnty. Assessor, 181 N.E.3d
484, 489 (Ind. Tax Ct. 2021) (“[A]ny finding that the [assessor’s] appraisal is ‘lacking’
renders it insufficient to prove that the assessment is correct.”) (citation omitted), review
denied. That burden is more than just a burden of production. See Southlake Indiana,
LLC v. Lake Cnty. Assessor, 174 N.E.3d 177, 180 (Ind. 2021) (explaining that the
burden of proof under Section 17.2 requires more than just presenting enough evidence
11 on an issue to have that issue decided by the fact-finder (i.e., burden of production)).
The taxpayer, on the other hand, is not required to present any evidence or prove any
value. See I.C. § 6-1.1-15-17.2(b). And, even if a taxpayer chooses to do so, Section
17.2 diverges significantly from a regular appeal by requiring the assessor’s evidence to
stand alone in the effort to prove the assessment correct. See Southlake, 181 N.E.3d at
489 (providing that “an assessor’s [evidence] must be examined on a stand-alone
basis”) (internal quotation marks and citation omitted). The taxpayer’s evidence cannot
be used to rehabilitate the assessor’s evidence. Id. Finally, Section 17.2 provides that, if
the assessor fails to prove their assessment is correct, the taxpayer is entitled to have
the assessment revert to the prior year value. I.C. § 6-1.1-15-17.2(b). This differs
significantly from regular appeals not implicating Section 17.2 where the assessment
remains in place if the taxpayer is unable to prove a different value. See, e.g.,
Piotrowski BK #5643, LLC v. Shelby Cnty. Assessor, 177 N.E.3d 127, 132-35 (Ind. Tax
Ct. 2021) (upholding a taxpayer’s assessment when the taxpayer failed to meet the
burden of proof).
While Section 17.2 bundles its public policy objectives in a procedural packaging,
together its provisions combine to accomplish more than just the orderly dispatch of
judicial business. Indeed, Section 17.2 specifically exempts assessment increases
greater than 5% if they are due to renovations or improvements or changes in zoning or
usage. I.C. § 6-1.1-15-17.2(c). Such an exemption would be unnecessary if the only
goal were to ensure fair and efficient judicial administration. The setting aside of such
increases because they were precipitated by a change to the property implies that the
Legislature considers assessment increases greater than 5% for other reasons to
12 require special consideration. Moreover, assessments involving increases greater than
5% are not, as a practical matter, different than assessments involving lesser increases
or even decreases. While the magnitude of the changes may differ, the evidence
needed to prove value is the same. It follows then that appeals of those assessments
do not require different processes. In both instances, the objective is to uncover the true
tax value of the property based on its market value-in-use. See, e.g., Piotrowski, 177
N.E.3d at 132-33; Eckerling v. Wayne Twp. Assessor, 841 N.E.2d 674, 677 (Ind. Tax
Ct. 2006) (providing that Indiana’s property assessment system, unchanged in its goal
since 2002, is designed to consistently prioritize the accurate determination of a
property’s market value-in-use”); 50 IND. ADMIN. CODE 2.4-1-1(c) (2024) (stating that
“[w]hether an assessment is correct shall be determined on the basis of whether, in light
of the relevant evidence, it reflects the property’s [market value-in-use]”) (emphasis
added). Yet, Section 17.2 creates an entirely different framework for appeals involving
only certain types of assessment increases greater than 5% (i.e., those not due to
renovations or improvements or to changes in zoning or use). As such, the Court finds
that while Section 17.2 may have procedural elements, it predominately furthers public
policy objectives beyond the orderly dispatch of judicial business, making it a
13 substantive law. 2,3
Even if Section 17.2 were procedural in nature, it is well-established that
procedural changes to statutes are not required to be applied to pending matters. See
State v. Pelley, 828 N.E.2d 915, 919 (Ind. 2005) (“It has long been the law in this
jurisdiction that although statutes and rules concerning procedural and remedial matters
may be made to operate retroactively, it is not the case that they must apply
retroactively.”) (internal quotation marks, emphases, and citation omitted). The
retroactive application of procedural or remedial statutes is the exception, as these laws
are typically applied prospectively unless strong and compelling reasons justify
otherwise. Id.; accord Indiana Bureau of Motor Vehicles v. Watson, 70 N.E.3d 380, 385
(Ind. Ct. App. 2017). Here, the Assessor has not identified any strong or compelling
reasons to apply the repeal of Section 17.2 to pending appeals even if it were a
2 Aside from the other rights provided by Section 17.2, the allocation of the burden of proof itself may be enough to support finding the provision to be substantive. See, e.g., Medtronic, Inc. v. Mirowski Fam. Ventures, LLC, 571 U.S. 191, 199 (2014) (“[W]e have held that the burden of proof is a substantive aspect of a claim. . . . [T]he assignment of the burden of proof is a rule of substantive law[.] . . . [T]he burden of proof . . . [is] part of the very substance of [the plaintiff’s] claim and cannot be considered a mere incident of a form of procedure[.]”) (internal quotation marks and citations omitted).
3 The Assessor claims that the Court has “ruled that [the] burden shift is procedural because it
‘applies to the process and procedure of appeals alone, not to the mechanics of valuing property as of a certain assessment date.’” (Resp’t Br. at 8 (quoting Orange Cnty. Assessor v. Stout, 996 N.E.2d 871, 875 (Ind. Tax Ct. 2013)).) The Stout decision, however, does not support the Assessor’s contention. Stout was addressing a claim by an assessor that the burden-shifting statute applied as of the assessment date. Stout at 875 (“[T]he Assessor’s argument fails because it is premised on the belief that the statutory ‘trigger’ for shifting the burden of proof from the taxpayer to an assessing official is the assessment date.”). Based on the plain language of the statute, the Court concluded that “the burden of proof shifts from the taxpayer to an assessing official when a taxpayer files an appeal on an assessment that increased by more than 5% from one year to the next.” Id. (citation omitted). It explained that the burden-shifting statute is concerned with appeals and not with the assessment process. Id. (“This shift in the burden of proof applies to the process and procedure of appeals alone, not to the mechanics of valuing property as of a certain assessment date.”). Stout did not engage in any analysis of whether the burden-shifting statute was procedural or substantive in nature. 14 procedural law. Furthermore, rules of construction must yield to the “clearly apparent”
intent of the Legislature which, as Lexington Square concludes, is for Section 17.2 to
apply to cases pending at the time of its repeal. See Lexington Square, 219 N.E.3d at
243-46. 4
CONCLUSION
Having examined the Assessor’s arguments, the Court is unpersuaded that
Lexington Square is unsound. The Court, therefore, reaffirms the holding of Lexington
Square and holds that Section 17.2 continues to apply to Indiana Board appeals that
were filed on or before its repeal on March 21, 2022. The Court REVERSES the final
determination of the Indiana Board that valued the Crandalls’ property at $1,830,000 for
2020 and $1,940,000 for 2021 and REMANDS this matter to the Indiana Board for
action consistent with this opinion.
4 The Assessor also argues that the Board did not apply the repeal of Section 17.2 retroactively in this case. (See Resp’t Sur-surreply Br. at 11.) She maintains that Section 17.2 does not apply until the Board conducts a hearing on the merits, which did not occur in this case until after the repeal of Section 17.2 took effect. She contends that by refusing to apply Section 17.2 to the Crandalls’ appeals, the Board only “applied the law that existed at the time of the hearing.” (Resp’t Sur-surreply Br. at 11 (citation omitted).) Even if the Court were to adopt the Assessor’s position, it would not change the outcome dictated by Lexington Square’s holding and application in this case. As noted above, Lexington Square determined that it is clearly apparent from HEA 1260 that Section 17.2 “continued to apply to appeals . . . that had been filed before [its] repeal . . . and were still pending” at the time the repeal took effect. Elkhart Cnty. Assessor v. Lexington Square, 219 N.E.3d 236, 244 (Ind. Tax Ct. 2023). As Lexington Square notes, application of Section 17.2 to appeals filed before its repeal is consistent with the well- established principle that legislative enactments do not apply retroactively. Id. 15