Any feeder conductor that is protected above it's ampacity, other then those that fall under the "next size up rule", is a feeder tap conductor and must comply with 240.21(B).
If your panels are close to one another but more then 25 feet from the 400 amp feeder device, you could always run parallel (3/0 copper) conductors to a splice box, or even a gutter if both panels are adjacent to one another, within 25 feet of the panels and then have taps from the splice box/gutter to the panels. Up to the splice box it is a 400 amp feeder and no tap rules apply to that portion.