Elkhart County Assessor v. Lexington Square LLC

ATTORNEY FOR PETITIONER: ATTORNEY FOR RESPONDENT:
BETH E. HENKEL CHRISTOPHER D. OAKES
LAW OFFICE OF BETH HENKEL, LLC COX, OAKES & ASSOCIATES, LTD.
Indianapolis, IN Schaumburg, IL

IN THE
INDIANA TAX COURT

ELKHART COUNTY ASSESSOR, )
)
Petitioner, ) FILED
)
v. ) Case No. 22T-TA-00007 Sep 01 2023, 12:24 pm

) CLERK
Indiana Supreme Court
LEXINGTON SQUARE, LLC, ) Court of Appeals
and Tax Court
)
Respondent. )

ON APPEAL FROM A FINAL DETERMINATION OF
THE INDIANA BOARD OF TAX REVIEW

FOR PUBLICATION
September 1, 2023

WENTWORTH, J.

In a final determination dated March 24, 2022, the Indiana Board of Tax Review

determined that because neither the Elkhart County Assessor nor Lexington Square, LLC

demonstrated what the correct assessment of Lexington Square’s real property should

have been for the 2016 through 2018 tax years, Indiana Code § 6-1.1-15-17.2 dictated

that those assessments revert to the property’s 2015 assessed value. The Assessor now

appeals. Upon review, however, the Court affirms the Indiana Board’s final determination.

FACTS AND PROCEDURAL HISTORY

In September of 2016, Lexington Square purchased a multi-building apartment
complex in Elkhart, Indiana. (See, e.g., Cert. Admin. R. at 978.) While that property had

been assessed at $3,490,500 for tax year 2015, the Assessor increased the property’s

assessment to $7,683,000 for tax year 2016, $7,028,200 for tax year 2017, and

$7,059,800 for tax year 2018. (See Cert. Admin. R. at 978-96, 2349.) The increases in

value were attributable, in part, to the Assessor’s removal of an obsolescence adjustment

that the property had formerly received. (See, e.g., Cert. Admin. R. at 2492-93, 2539-41,

2555-56.)

Alleging that the 2016 to 2018 assessments were not only incorrect, but also were

unfair when compared to the assessments of other apartment complexes in Elkhart

County, Lexington Square initiated appeals first with the Elkhart County Property Tax

Board of Appeals (“PTABOA”) and then with the Indiana Board. (See Cert. Admin. R. at

1-721.) The Indiana Board conducted a consolidated hearing on all of Lexington Square’s

appeals on May 18, 2021. (See Cert. Admin. R. at 2298-2563.)

During the Indiana Board hearing, the Assessor admitted that because she

increased the subject property’s assessment by more than 5% between 2015 and 2016,

Indiana Code § 6-1.1-15-17.2 dictated that she bore the burden of proof on the valuation

issue. (See Cert. Admin. R. at 2317-19, 2349-50.) The parties agreed, however, that the

burden of proof on the uniformity issue resided with Lexington Square. (See Cert. Admin.

R. at 2317-19.) Accord Thorsness v. Porter Cnty. Assessor, 3 N.E.3d 49, 52 (Ind. Tax

Ct. 2014) (explaining that the burden-shifting rule in Indiana Code § 6-1.1-15-17.2 (and

its predecessor statutes) applied only to valuation challenges, not to constitutional

uniformity challenges).

To demonstrate that her assessment valuations were correct, the Assessor

2
submitted an appraisal, completed in conformance with the Uniform Standards of

Professional Appraisal Practice, that valued the subject property between $7,277,349 and

$7,990,000 during each of the years at issue. (See Cert. Admin. R. at 1758-1852, 2349-

51, 2358.) In rebuttal, Kevin Donohoe, the vice president of Lexington Square’s property

management company, testified that he believed the subject property’s assessed value

should have been between $6,776,466 and $7,535,545 during each of the years at issue.

(See, e.g., Cert. Admin. R. at 2480, 2487-88, 2495.) Donohoe explained that he arrived

at those values by applying a capitalization rate to the average of the property’s actual

net operating income for tax years 2015 through 2017. 1 (See, e.g., Cert. Admin. R. at

997-1507, 2469-97, 2515-17, 2526.)

With respect to the uniformity issue, Lexington Square presented the Indiana

Board with evidence that compared recent sales prices of numerous other apartment

complexes in Elkhart County to their assessment values, asserting that it demonstrated

that those properties were “underassessed” on average by more than 26%. (See, e.g.,

Cert. Admin. R. at 941-75, 997-1283, 1506-1632, 2458-69, 2480-85, 2489-96, 2519-20.)

Lexington Square asserted that its property, in contrast, was underassessed by only 4%.

(See, e.g., Cert. Admin. R. at 978-96, 2127-36, 2526 (comparing Lexington Square’s

$7,975,000 purchase price against its assessed value).)

The Indiana Board’s final determination issued on March 24, 2022, was based on

this Court’s decision in Southlake Indiana, LLC v. Lake County Assessor (Southlake II),

181 N.E.3d 484, 489 (Ind. Tax Ct. 2021), review denied, finding that the Assessor did not

1
Donohoe testified that based on sales data from what he believed were comparable apartment
complexes in Elkhart County, he extracted a capitalization rate to apply to the subject property’s
averaged net operating income. (See, e.g., Cert. Admin. R. at 997-1507, 2478-83, 2487-97.)
3
prove her assessment was “correct” because her appraisal evidence did not conclude

“exactly and precisely” to the actual assessed values she applied during the years at

issue. (See Cert. Admin. R. at 2222-23 ¶¶ 46-47.) Likewise, the Indiana Board found

that Lexington Square had failed to show what the proper value of its property should

have been because “Don[o]hoe based his analysis solely on the subject property’s

historical income, expenses, and occupancy without comparing that data to the market.”

(Cert. Admin. R. at 2223-24 ¶ 49.) Finally, regarding the uniformity issue, the Indiana

Board determined that Lexington Square failed to demonstrate that it was unfairly

assessed in comparison to other similarly-situated properties, explaining that its evidence

failed to comport with any of the standards for ratio studies as set forth by both the Indiana

Department of Local Government Finance and the International Association of Assessing

Officers. (See, e.g., Cert. Admin. R. at 2227-33 ¶¶ 59-74.) Accordingly, because neither

party proved the property’s correct assessed value, the Indiana Board ordered that each

of Lexington Square’s contested assessments revert to the property’s 2015 assessed

value in accordance with Indiana Code § 6-1.1-15-17.2. (Cert. Admin. R. at 2238 ¶ 91.)

The Assessor petitioned for a rehearing, claiming that the Indiana Board had

erroneously applied the burden of proof. (See Cert. Admin. R. at 2243-53.) In support,

the Assessor argued that Indiana Code § 6-1.1-15-17.2 no longer applied to the appeal

because three days before the Indiana Board issued its final determination, the

Legislature simultaneously repealed Indiana Code § 6-1.1-15-17.2 and adopted a new

statute, Indiana Code § 6-1.1-15-20, in its stead. (See, e.g., Cert. Admin. R. at 2244.)

The Assessor explained that because the new statute 1) specified that it applied only to

appeals filed after its effective date of March 21, 2022, and 2) did not specify that the

4
provisions in Indiana Code § 6-1.1-15-17.2 still applied to pending appeals, “it was as if

Indiana Code § 6-1.1-15-17.2 never existed.” (See Cert. Admin. R. at 2243-53.) Thus,

she concluded that she never bore the burden of proof at the Indiana Board’s

administrative hearing. (See Cert. Admin. R. at 2250-51.) The Indiana Board denied the

Assessor’s petition for rehearing. (See Cert. Admin. R. at 2296.)

The Assessor initiated this original tax appeal on May 5, 2022. The Court heard

the parties’ oral arguments on October 6, 2022. Additional facts will be supplied when

necessary.

STANDARD OF REVIEW

The party seeking to overturn an Indiana Board final determination bears the

burden of demonstrating its invalidity. Osolo Twp. Assessor v. Elkhart Maple Lane

Assocs., 789 N.E.2d 109, 111 (Ind. Tax Ct. 2003). Thus, to prevail in her appeal, the

Assessor must demonstrate to the Court that the Indiana Board’s final determination is

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

contrary to constitutional right, power, privilege 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. See IND. CODE § 33-

26-6-6(e)(1)-(5) (2023).

LAW

This Court has previously explained that prior to 2009, a taxpayer who challenged

his property tax assessment always bore the burden of proof (i.e., the burden of

persuading the fact-finder that the assessment was incorrect and the burden of producing

evidence to demonstrate the correct assessment). Orange Cnty. Assessor v. Stout, 996

5
N.E.2d 871, 873 (Ind. Tax Ct. 2013) (citations omitted). Beginning in 2009, however, the

Legislature enacted a series of statutory exceptions that required the assessing official,

not the taxpayer, to bear the burden of proof in certain circumstances. See, e.g., IND.

CODE § 6-1.1-15-1(p) (eff. July 1, 2009) (amended 2011); IND. CODE § 6-1.1-15-17 (2011)

(repealed 2012); IND. CODE § 6-1.1-15-17.2 (2012) (repealed 2022).

The exception governing this appeal stated that if an assessing official increased

a taxpayer’s property assessment by more than 5% from one year to the next, the

assessing official “making the assessment ha[d] the burden of proving that the

assessment [was] correct in any review or appeal under this chapter and in any appeals

taken to the Indiana board of tax review or to the Indiana tax court.” IND. CODE § 6-1.1-

15-17.2(a)-(b) (2016) (repealed 2022). Moreover, the event that triggered the authority

of Indiana Code § 6-1.1-15-17.2 to shift the burden of proof to the assessing official was

the filing of an appeal challenging the assessing official’s assessment increase. See I.C.

§ 6-1.1-15-17.2(a); Stout, 996 N.E.2d at 875 (explaining that the plain language of the

burden-shifting statutes “indicate[s] 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” (emphasis added)).

To demonstrate that her assessment was correct, Indiana Code § 6-1.1-15-17.2

requires the assessing official to present evidence that “exactly and precisely conclude[d]

to her original assessment.” Southlake II, 181 N.E.3d at 489. “If [the assessing official]

fails to meet th[at] burden of proof[, however,] . . . the taxpayer may introduce evidence

to prove the correct assessment.” I.C. § 6-1.1-15-17.2(b). See also Southlake Indiana,

LLC v. Lake Cnty. Assessor (Southlake I), 174 N.E.3d 177, 179-80 (Ind. 2021) (explaining

6
that neither the Indiana Board nor this Court can consider one party’s evidence to support

whether the opposing party met its burden of proof under Indiana Code § 6-1.1-15-17.2).

If the assessing official did not meet her burden and the taxpayer chose not to introduce

evidence or introduced evidence that did not prove what the correct assessment should

be, “the [challenged] assessment [would] revert[] to the assessment for the prior tax

year[.]” I.C. § 6-1.1-15-17.2(b). This provision of Indiana Code § 6-1.1-15-17.2 has been

referred to as “the reversionary clause.” 2 See, e.g., Southlake I, 174 N.E.3d 179.

On March 21, 2022, the Legislature simultaneously repealed Indiana Code § 6-

1.1-15-17.2 and enacted a new statutory exception, Indiana Code § 6-1.1-15-20, in its

stead. See Pub. L. No. 174-2022, §§ 32, 34 (eff. Mar. 21, 2022) (indicating that both

actions were “effective upon passage”). Indiana Code § 6-1.1-15-20 states:

(a) In an appeal under this chapter, except as provided in subsection
(b), the assessment as last determined by an assessing official or the
county board is presumed to be equal to the property’s true tax value 3
until rebutted by evidence presented by the parties.

(b) If a property’s assessment increased more than five percent (5%)
over the property’s assessment for the prior tax year, then the
assessment is no longer presumed to be equal to the property’s true
tax value, and the assessing official has the burden of proof.

*****
2
The reversionary clause was not part of the original 2012 text of Indiana Code § 6-1.1-15-17.2;
rather, it was added two years later, in 2014. See Pub. L. No. 97-2014, § 2 (eff. Mar. 25, 2014).
At that time, the Legislature specified that the reversionary clause would apply “to all appeals or
reviews pending on the effective date of the amendments made to this section in the 2014 regular
session of the Indiana general assembly” and “to all appeals or reviews filed thereafter.” P.L. 97-
2014, § 2. In 2019, the Legislature removed the language that applied the reversionary clause to
appeals that had been filed prior 2014. See Pub. L. No. 121-2019, § 13 (eff. July 1, 2019).
3
Property in Indiana is assessed based on its true tax value; a property’s true tax value is
equivalent to its market value-in-use, and a property’s market value-in-use is typically its market
value. See, e.g., IND. CODE § 6-1.1-31-6(c) (2022); 2021 Real Property Assessment Manual
(incorporated by reference at 50 IND. ADMIN. CODE 2.4-1-2 (2021)) at 2; Millennium Real Est. Inv.,
LLC v. Assessor, Benton Cnty., 979 N.E.2d 192, 196 (Ind. Tax Ct. 2012), review denied.

7
 (e) Both parties in an appeal under this chapter may present evidence
of the true tax value of the property, seeking to decrease or increase
the assessment.

(f) In an appeal under this chapter, the Indiana board shall, as trier of
fact, weigh the evidence and decide the true tax value of the property
as compelled by the totality of the probative evidence before it. The
Indiana board’s determination of the property’s true tax value may be
higher or lower than the assessment or the value proposed by a party
or witness. If the totality of the evidence presented to the Indiana board
is insufficient to determine the property’s true tax value in an appeal
governed by subsection (a), then the property’s assessment is
presumed to be equal to the property’s true tax value. If the totality of
the evidence presented to the Indiana board is insufficient to
determine the property’s true tax value in an appeal governed by
subsection (b), then the property’s prior year assessment is presumed
to be equal to the property’s true tax value.

*****
(h) This section applies only to appeals filed after the effective date of
this section as added by HEA 1260-2022. 4

IND. CODE § 6-1.1-15-20 (2022) (footnotes and emphases added). See also P.L. 174-

2022, § 34. Indiana Code § 6-1.1-15-20 preserves the requirement that an assessing

official bears the burden of demonstrating that an assessment is correct if she increases

it by 5% or more from one year to the next; eliminates the requirement that to meet that

burden, the assessor’s evidence must “exactly and precisely” conclude to the original

assessment; allows the Indiana Board to determine the correct assessment based on

evidence presented by both parties; and limits the reversionary clause remedy to

instances when neither party presented sufficient evidence for the Indiana Board to

4
Both the repeal of Indiana Code § 6-1.1-15-17.2 and the enactment of Indiana Code § 6-1.1-15-
20 were presented to the Governor as part of House Enrolled Act 1260; they became public law
when HEA 1260 was signed by the Governor on March 21, 2022. See, e.g.,
https://iga.in.gov/legislative/2022/bills/house/1260/actions (last visited August 30, 2023).

8
determine a property’s correct assessment. Compare I.C. § 6-1.1-15-20(b), (e)-(f) with

I.C. § 6-1.1-15-17.2 and Southlake II, 181 N.E.3d at 489.

ANALYSIS

In its final determination, the Indiana Board concluded that under Indiana Code §

6-1.1-15-17.2, the Assessor bore, but failed to meet, her burden of proving that her 2016

to 2018 assessments of Lexington Square’s property were correct. (See Cert. Admin. R.

at 2222-23 ¶¶ 46-47.) The Indiana Board also found that Lexington Square failed to

demonstrate what the correct assessment should be. (See Cert. Admin. R. at 2238 ¶ 91.)

As a result, the Indiana Board applied the reversionary clause and ordered Lexington

Square’s 2016 to 2018 assessments to revert to the property’s 2015 assessed value of

$3,490,500. (See Cert. Admin. R. at 2238 ¶ 91.)

On appeal, the Assessor argues that the Indiana Board got it all wrong. She

asserts that Indiana Code § 6-1.1-15-17.2 no longer applied to this case once the statute

was repealed on March 21, 2022, three days before the Indiana Board issued its final

determination. (See, e.g., Br. Pet’r Elkhart Cnty. Assessor (“Pet’r Br.”) at 2, 9-16.) She

further explains that the newly enacted statute, Indiana Code § 6-1.1-15-20, specified that

it applied only to cases filed after March 21, 2022, and it did not have a savings clause 5

that authorized Indiana Code § 6-1.1-15-17.2 to remain in effect for appeals that were still

pending. (See, e.g., Pet’r Br. at 2, 9-16.) As a result, the Assessor contends that: 1)

the repeal of Indiana Code § 6-1.1-15-17.2 “eliminated that law as though it never

existed”; 2) “no burden-shifting statut[ory provision] . . . applies to any . . . appeals pending

5
A savings clause is defined as “[a] statutory provision exempting from coverage something that
would otherwise be included.” BLACK’S LAW DICTIONARY 1610 (11th ed. 2019). It “is generally
used in a repealing act to preserve rights and claims that would otherwise be lost.” Id.

9
at the Indiana Board or [any county property tax assessment board of appeals] as of

March 21, 2022”; and 3) Lexington Square’s appeals should be remanded to the Indiana

Board to determine the correct assessment “based on the general rule that [Lexington

Square as the t]axpayer bears the burden of proof[.]” 6 (See Pet’r Br. at 13 (emphasis

omitted), 20, 22.)

In support of her position, the Assessor simply listed several Indiana cases stating

that “‘in the absence of a legislative enactment to the contrary, the repeal of a statute

without a saving[s] clause, where no vested right 7 is impaired, completely obliterates it,

and renders the same as ineffective as if it had never existed.’” (See Pet’r Br. at 13-15

(quoting Parr v. Paynter, 137 N.E. 70, 71 (Ind. Ct. App. 1922) (footnote added); citing

Dep’t Pub. Welfare of Allen Cnty. v. Potthoff, 44 N.E.2d 494, 497 (Ind. 1942); Heath v.

Fennig, 40 N.E.2d 329, 331 (Ind. 1942); Taylor v. Strayer, 78 N.E. 236, 237-38 (Ind.

1906); Rupert v. Martz, 18 N.E. 381, 383 (Ind. 1888); Henderson v. State, 58 Ind. 244,

247 (Ind. 1877); Bd. Comm’rs of St. Joseph Cnty. v. Ruckman, 57 Ind. 96, 101-02 (Ind.

1877); Moor v. Seaton, 31 Ind. 11, 13 (Ind. 1869)).) (See also Reply Br. Pet’r Elkhart

Cnty. Assessor (“Pet’r Reply Br.”) at 3-4.) The Assessor’s “analysis” fails to recognize,

however, the line of Indiana cases that explain an express savings clause is not required

6
On remand, the Assessor continues, “the Indiana Board should, at a minimum, uphold the
Assessor’s assessments, given that the Indiana Board already determined that [Lexington
Square] failed to submit probative evidence demonstrating that [its] assessments for 2016, 2017[,]
and 2018 were incorrect and what the assessments should be[.]” (Br. Pet’r Elkhart Cnty. Assessor
(“Pet’r Br.”) at 22.)
7
A “vested right” is “[a] right that so completely and definitely belongs to a person that it cannot
be impaired or taken away without the person’s consent.” BLACK’S LAW DICTIONARY at 1585. See
also WEBSTER’S THIRD NEW INT’L DICTIONARY 2547 (2002 ed.) (stating that a “vested right” is “a
right belonging so absolutely, completely, and unconditionally to a person that it cannot be
defeated by the act of any private person and that is entitled to governmental protection usu.
under a constitutional guarantee”).
10
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. See, e.g.,

State ex rel. Milligan v. Ritter’s Est., 48 N.E.2d 993, 999 (Ind. 1943); Indianapolis Union

R. Co. v. Waddington, 82 N.E. 1030, 1032 (Ind. 1907); Gorley v. Sewell, 77 Ind. 316, 318-

21 (Ind. 1881); Hibler v. Globe Am. Corp., 147 N.E.2d 19, 26-27 (Ind. Ct. App. 1958). The

Court must therefore determine whether it is clearly apparent – despite the lack of an

express savings clause – that the Legislature did not intend to rescind the rights of

taxpayers like Lexington Square whose appeals were filed under Indiana Code § 6-1.1-

15-17.2 and still pending when that statute was repealed on March 21, 2022.

The best evidence of legislative intent is found in the actual statutory language at

issue. See Johnson Cnty. Farm Bureau Coop. Ass’n v. Indiana Dep’t of State Revenue,

568 N.E.2d 578, 580-81 (Ind. Tax Ct.1991), aff'd by 585 N.E.2d 1336 (Ind. 1992).

Moreover, that 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. Id. at 584. This guidance is likewise relevant to

determining how the repeal of a statute is to be applied. See, e.g., Ritter’s Est., 48 N.E.2d

at 999 (explaining that rules of construction also apply to construing acts that repeal

statutes).

As earlier indicated, Lexington Square filed its appeal while Indiana Code § 6-1.1-

15-17.2 was in effect; therefore, upon filing the case, that statute shifted the burden of

proof to the assessing official for the pendency of the entire case. Supra pp. 2, 6. The

same day that Indiana Code § 6-1.1-15-17.2 was repealed, the Legislature

simultaneously enacted Indiana Code § 6-1.1-15-20, which was “effective upon passage.”

11
See P.L. 174-2022, § 34. The plain language of Indiana Code § 6-1.1-15-20 explicitly

stated it would only apply to appeals filed after March 21, 2022. See P.L. 174-2022, §

34; I.C. § 6-1.1-15-20(h). Reading all of these provisions in light of each other, 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. Stated differently, when

the Legislature repealed Indiana Code § 6-1.1-15-17.2, the right to proceed under that

statute was terminated only for all future cases, i.e., cases filed after its March 21, 2022,

repeal. Moreover, the statute’s provisions continued to apply to appeals, like this one,

that had been filed before the repeal of Indiana Code § 6-1.1-15-17.2 and were still

pending. Furthermore, this conclusion – that the simultaneous repeal and enactment of

these two statutes are independently effective – is reinforced by the general presumption

that legislation operates prospectively and therefore must be read in such a way that

prevents an illogical or absurd result. See, e.g., DeKalb Cnty. E. Cmty. Sch. Dist. v.

Dep’t of Local Gov’t Fin., 930 N.E.2d 1257, 1260 (Ind. Tax Ct. 2010); Uniden Am. Corp.

v. Indiana Dep’t of State Revenue, 718 N.E.2d 821, 828 (Ind. Tax Ct. 1999). See also

N.G. v. State, 148 N.E.3d 971, 976 (Ind. 2020) (Slaughter, J. dissenting) (stating that

“[g]iven our presumption that legislation applies prospectively, the phrase ‘effective upon

passage’ is presumed to mean ‘has prospective effect upon passage’”). As a result, the

Assessor is not entitled to relief on the basis that Indiana Code § 6-1.1-15-20 does not

contain an express savings clause.

The Assessor has also alleged that the repeal of Indiana Code § 6-1.1-15-17.2

was remedial because it promptly “cured” defects in the law – the statute’s use of a

“correctness” standard and a reversionary clause – along with their “absurd”

12
repercussions brought to light via the Southlake I and Southlake II decisions. (See Pet’r

Br. at 16-18; Pet’r Reply Br. at 2, 4-9.) The general rule in Indiana is that legislation is to

be given only prospective effect but “[a]n exception to this general rule exists for remedial

statutes[.]” Martin v. State, 774 N.E.2d 43, 44 (Ind. 2002) (citations omitted). See also

Bourbon Mini-Mart, Inc. v. Gast Fuel & Servs., Inc., 783 N.E.2d 253, 260 (Ind. 2003)

(explaining that a remedial statute is one that is intended to cure a defect or mischief that

existed in a prior statute). Relying on that exception, the Assessor contends that the

repeal of Indiana Code § 6-1.1-15-17.2 should apply retroactively to all appeals still

pending as of March 21, 2022. (See Pet’r Reply Br. at 4-5.)

The repeal of Indiana Code § 6-1.1-15-17.2 was not, however, remedial. Indiana

Code § 6-1.1-15-17.2 explicitly provided that: 1) an assessing official bore the burden of

proof in those cases where she increased an assessment by more than 5%, and 2) if the

assessing official did not meet the burden of proving her assessment was correct, the

taxpayer could either a) introduce evidence to prove the correct assessment, or b) simply

let the assessment revert to the previous level. See I.C. § 6-1.1-15-17.2(a)-(b).

Therefore, the Assessor’s argument assumes the “defect” the Legislature sought to

remedy by the repeal of Indiana Code § 6-1.1-15-17.2 was the Legislature’s own explicit

intent, expressed in the plain language of that statute itself. The Legislature’s repeal of a

statute, like the repeal of Indiana Code § 6-1.1-15-17.2, is not a sufficient reason to

consider that the statute was “defective” and its repeal “remedial.” Instead, it indicates

the Legislature has simply reversed course on an otherwise expressly-stated policy.

Even if the repeal of Indiana Code § 6-1.1-15-17.2 were remedial, however, this

retroactivity argument still fails. Indeed, there is no requirement that remedial legislation

13
must be applied retroactively; retroactive application is still the exception. State v. Pelley,

828 N.E.2d 915, 919-20 (Ind. 2005) (explaining that while statutes addressing remedial

matters may be applied retroactively, “such application is not required”) (citation and

emphasis omitted); Hurst v. State, 890 N.E.2d 88, 94 (Ind. Ct. App. 2008), trans. denied.

Accordingly, the Court must have “strong and compelling reasons” before it applies

remedial legislation retroactively. See Pelley, 828 N.E.2d at 920 (citation omitted).

As her strong and compelling reasons, the Assessor argues that the application of

Indiana Code § 6-1.1-15-17.2’s reversionary clause “undermines and displaces” Indiana’s

market value-in-use and true tax value standards, fails to connect a value with the

assessment date at issue, and “inevitably” leads to unjust and inequitable results. (See

Pet’r Br. at 16-18; Pet’r Reply Br. at 2, 4-9.) The elimination of the reversionary clause,

she continues, would rectify these issues and therefore augurs for applying the repeal of

Indiana Code § 6-1.1-15-17.2 retroactively. (See Pet’r Br. at 16-18; Pet’r Reply Br. at 2,

4-9.) The Court is not persuaded that the Assessor’s position is credible in light of the

Legislature’s lack of explicit language with respect to its repeal of Indiana Code § 6-1.1-

15-17.2 or enactment of Indiana Code § 6-1.1-15-20 indicating an “unequivocal and

unambiguous” retrospective intent. See P.L. 174-2022, §§ 32, 34. Consequently, the

Court does not find that the Assessor has provided strong or compelling reasons to ignore

the general rule and apply the repeal of Indiana Code § 6-1.1-15-17.2 retroactively.

Finally, courts must avoid interpreting statutory language in a manner that would

lead to an absurd result or a result that the Legislature, as a reasonable body, could not

have intended. See DeKalb Cnty. E. Cmty. Sch. Dist., 930 N.E.2d at 1260; Dalton

Foundries, Inc. v. State Bd. of Tax Comm’rs, 653 N.E.2d 548, 553-54 (Ind. Tax Ct.1995).

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By the plain language of Indiana Code § 6-1.1-15-17.2, any assessment appeal filed

before March 21, 2022, that was still pending thereafter, would have informed the litigants

that the assessing official bore the burden of proof. Therefore, the litigants would have

prepared their litigation strategies accordingly. For example, a taxpayer might assume

that the assessing official could not provide evidence that the original assessment was

“exactly and precisely” correct, and therefore decide not to present any evidence but

rather rely on the reversionary clause to allow the assessment to revert to the previous

year’s value. If the Court were to declare the repeal of Indiana Code § 6-1.1-15-17.2 had

retroactive effect, however, “the rules of play” would be unfairly changed mid-stream. A

re-do in every single one of the still-pending cases would be necessary to provide

taxpayers an opportunity to develop and implement new litigation strategies aligned with

the new allocation of the burden of proof. Reworking all pending appeals is absurd

because the amount of time needed to resolve them would be significantly prolonged, an

undue strain would be placed on administrative level resources, and costs of litigation

would greatly increase. This is surely not the result the Legislature, as a reasonable body,

would have intended. Accordingly, the Court declines the Assessor’s invitation to apply

the repeal of Indiana Code § 6-1.1-15-17.2 retroactively.

CONCLUSION

The Indiana Board did not err when it determined that the provisions of Indiana

Code § 6-1.1-15-17.2 applied to Lexington Square’s assessment appeals. Consequently,

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the Court AFFIRMS the Indiana Board’s final determination. 8

8
The Court notes that in her reply brief, the Assessor introduced a new theory for recovery,
asserting that even under Indiana Code § 6-1.1-15-17.2, the Indiana Board erred in applying that
statute to Lexington Square’s 2017 and 2018 appeals. (Compare Pet’r Reply Br. at 9-13 with
Pet’r Pet. Jud. Rev. Final Determination Indiana Bd. Tax Rev. (“Pet’r Pet.”) and Pet’r Br.) Despite
the opportunity, the Assessor did not present this issue to the Indiana Board. (See Pet’r Pet.,
Attach. B.) Because the issue was not considered at the administrative level, it will not be
considered here. See, e.g., Hoogenboom-Nofziger v. State Bd. of Tax Comm’rs, 715 N.E.2d
1018, 1021-22 (Ind. Tax Ct. 1999); Whitley Prods., Inc. v. State Bd. of Tax Comm’rs, 704 N.E.2d
1113, 1119 (Ind. Tax Ct. 1998), review denied; State Bd. of Tax Comm’rs v. Gatling Gun Club,
Inc., 420 N.E.2d 1324, 1328 (Ind. Ct. App. 1981); IND. CODE § 33-26-6-3 (2023) (indicating that
in cases such as this, the Court is precluded from considering issues and evidence not presented
to the Indiana Board).

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