OPINION OF THE COURT
Mahoney, P. J.The facts are not in dispute. In 1955 the petitioners, while residents of the State of North Carolina, entered into an agreement in which they sold the stock in certain closely held corporations with the proceeds to be paid to them on an installment basis. The installment payments began in 1955 and terminated in 1962. Petitioners subsequently became residents of New York. In an opinion letter, dated January 22, 1957, respondents notified petitioners that the deferred profit from this installment sale would not be taxable for purposes of New York income tax. In the calendar year 1962 petitioners had a capital gain of $280,152.55 from the 1955 sale installment received in that year which they offset on their Federal income tax return with capital losses sustained by them on other transactions, thereby showing a net capital gain on the Federal income tax return for 1962 in the sum of $18,120.60.
On their 1962 New York State income tax return, petitioners did not report the capital gain received that year from the 1955 installment sale on the grounds that it was not attributable to a New York source. Respondents subsequently agreed that the installment payments were from a non-New York source, and were properly excludable under section 654 (subd [c], par [3]) of the Tax Law. As a result, for the year 1962, petitioners showed a net capital gain on their Federal tax return, and a net capital loss on their State tax return. Petitioners seek to carry over into succeeding years this net capital loss. Petitioner Robert J. Gurney claims that he should be permitted to carry over this capital loss into 1963, 1964 and 1965, and petitioner Gloria E-. Gurney seeks to carry over this capital loss into 1963 and 1964. The tax year 1962 is not in dispute.
The carry-over of these capital losses was disallowed by *305respondents, and on May 17, 1967 the petitioners requested a hearing. Thereafter, petitioners waived their right to a formal hearing, and consented to have their application decided on the information in respondents’ file. In a determination, dated July 15, 1977, respondents concluded that petitioners were not entitled to net capital loss carry-overs for the years in dispute. The grounds for this determination are section 612 (subd [a]) of the Tax Law, which defines New York adjusted gross income of a resident as his Federal gross adjusted income with certain modifications, and the finding that no net capital loss carry-overs were reported on petitioners’ Federal returns for the years 1963, 1964 and 1965.
Petitioners commenced this article 78 proceeding to review the determination, contending that respondents’ strict adherence to the language of section 612 (subd [a]) of the Tax Law was arbitrary and capricious. Special Term dismissed the petition and this appeal ensued.
There must be a reversal. Section 654 (subd [c], par [3]) of the Tax Law provides that no item of income or gain from a nonresident’s out-of-State source "shall be taken into account in determining New York adjusted gross income or the New York itemized deduction for any subsequent taxable period” (emphasis added). Since petitioners’ Federal returns for 1963, 1964 and 1965 showed no loss carry-over from 1962 solely because the 1962 loss was used to offset the 1962 gain, which was from an out-of-State source while petitioners were nonresidents, the refusal to allow petitioners to carry over the 1962 loss into 1963, 1964 and 1965 on their State returns because no such loss carry-over appeared on their Federal returns for those years clearly takes into account the 1962 out-of-State income while petitioners were nonresidents. Accordingly, respondents’ simplistic reliance on the literal meaning of section 612 (subd [a]) to conclude that petitioners must use the adjusted gross income figures from the Federal returns for the years in question results in a direct conflict with section 654 (subd [c], par [3]), and its determination, therefore, cannot be sustained.
The judgment should be reversed, on the law and the facts, and the petition granted, without costs.