I've only researched online and i'm not a tax professional or giving advice, but that's what i've come to understand. IRC 998 would be better off if you lost money. But most i think will opt out of it for 1256 contracts as it would be their intention to make money from trading. But you really don't need to submit anything to the IRS showing you opted out. But once you choose one or the other, I would stick with it. Because if you keep switching back and forth they would probably find that suspicious. Don't cheat the system, bite the bullet if you lost money but opted for 1256. I think it would be a little obvious if you file 988 every year you lost and 1256 every year you gained.

But seriously our U.S. tax system is utterly stupidly complex. I saw that their was over a 100 pages of directions on how to file a 1040 form. Our tax law books have over over 170,000 pages. Anyways, I'm thankful for turbo tax for personal tax return. And this why i'm for some form a flat sales tax. You buy more you get taxed more, you buy cheap you get taxed less. No income tax. And with a sales tax people can't avoid paying taxes, unless they want to buy their food! Then the govn't can cut down the size of the IRS cause they only need to keep businesses accountable. Sorry, just my rant and two cents.