What makes a panel capable or not capable?
Is it
capable if it has empty spaces that are available?
Is it
not capable if you hang a sign on it saying this panel is not capable?
Is it only
not capable if no other spaces are available?
Is it
capable only if it already has other circuits already in it?
Article 100 doesn't define capable, I just looked!
Valid points, to the million dollar question.
IMO:
If you are using a 200A 3-phase MBL as a combiner for your (3) 2pole 40's,
it is going to be at least 12 spaces.
Now this panel will be in the parameter of 2008NEC 690.64(B)
...it is "capable of supplying multipl branch circuits or feeders"...
So, your concern is 690.64(B)(2)?
We have determined this loadcenter is 'Capable', so you can use it for your (3) 2-pole 40's, and size the buss accordingly.
There is no mention of sizing for possible future load to this panel.
690.64(B)(4) says it shall be marked.
I would size this loadcenter accordingly, size the buss accordingly, and label it accordingly.
(and hope the inspector sees it the way that I do)
I would call before hand, but this is how I see it, and so does alot of other installers and instructors.