Redsy,
I think 2 circuits over should be allowed. This is what would be required to add a sub panel without moving circuits to the new panel. Although I can see an arguement for 4 circuits.
Like I said earlier, if a 20/40 panel is half the size of a 40/40 panel, why should both be limited to 40? Just because?
You must have a limit and I think for new work the limit should be the manufacturers rating. I think there should be an exception for alterations.
John, You install a sub panel for $40? That may be what the panel cost, but what about the 100 amp breaker, the feeder wire, the labor involved? We charge a minimum of $350 to our best contractors and it goes up from there depending on the brand and distance from the original panel. So a $12 tandem breaker looks a lot better.