My DM does it based on the spell slot used.
this post was submitted on 23 Jun 2023
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When a spellcaster casts a spell using a slot that is of a higher level than the spell, the spell assumes the higher level for that casting. For instance, if Umara casts magic missile using one of her 2nd-level slots, that magic missile is 2nd level.
https://www.dndbeyond.com/sources/basic-rules/spellcasting#CastingaSpellataHigherLevel
Higher level spell slot means higher level spell.
Thanks!