Fatawa >Khums > chapter Two


Chapter two
Rules concerning Payment of Khums


1. Who is qualified to receive Khums?

You may know by now that Khums is a huge source of income, should every mukallaf comply with the requirements of the law and pay their share. These undepletable funds are not only capable of fulfilling the requirements of the poor and needy, but constitute an important income for the state coffers that could be uses in funding vital projects and satisfying pressing needs.

Accordingly, in distributing Khums on the eligible recipients, the needs of both the state as well as the individuals has been taken into consideration. In juridical terminology, each portion of Khums has been called "share", the total of which is six allotted as follows:

i. The State share.

Three shares go to the state. These are Allah's share, The Prophet's and his kinsmen (Thil Qurba), especially, the Infallible Imam. Had the Prophet (p.) been alive, he would have been in-charge of all three shares. In his absence, the Imam, is second in line to assume the responsibility of these shares; and in his absence, the general representative of the Imam, i.e. the just jurist, known as the "Marji"' is the custodian of the shares. In jurists' circles, these three shares are also known as "The share of the Imam".

Evidently, this part of Khums is not made available to the Prophet or the Imam in their personal capacity, but for their position and responsibility at the helm of the state. This should call for making funds available for them to help them discharge such responsibility, in the way the Infallible (ruler) sees fit.

However, since the Infallible (ruler) is absent, the custodianship of these shares has been passed to the Marji', who must take into account, when disposing of the share of the Imam, what pleases the Imam (a.s.), which can generally be construed from the nature of Islamic legislation and the way the Imam conducted himself among Muslims at his lifetime; the requirements and the office of the Imam should also have bearing on the matter. All this has to be present in the mind of the Marji' when distributing the share, i.e. according to a list of priorities, which may vary pursuant to the day and age, and in a way which is commensurate with the remit of the authority of the just jurist.

It can be said that these priorities can be confined to two aspects pursuant to their order of importance:

a. The share of the Imam has to be spent in the avenues, which propagate the teachings of Islam and consolidates them; included in this aim should be the defense of Islam and its territories from the aggression of the enemy.

Ingredients of this avenue are the funding of centers of propagation and preaching, preparing the ulema(religious scholars) and preachers, establishing universities and theological institutes, and printing/publishing books. Another avenue should be defending Muslim lands and their achievements at peace as well as war times, as men of expertise in the field see fit. Making funds available for the cause of consolidating the Islamic entity (state), safeguarding its independence and sovereignty, establishing the order of justice, and warding off transgression is yet another aim.

b. Making money from the Share of the Imam available to finance vital projects for Muslims. Such as schools, hospitals, scientific institutions and economic projects, in the spheres of irrigation, land reclamation, and so on, of general good. Providing for the needs of the poor and the needy with grants and institutions overseeing their affairs is another avenue of expenditure. There are, of course, others.

It goes without saying that should the just jurist rule, i.e. being at the top echelon of government, the avenues of spending from the Share of the Imam (May Allah hasten his reappearance) would be far and wide.

ii. The Share of Individuals

This Share comprises three portions also. They are given to (a) the poor and needy, especially the poor, (b) the orphans, and (c) the wayfarer.

Unlike the distribution of Khums, where the description of "the poor/needy and the wayfarer' can cover all the Muslim poor, be they Hashimite or non-Hasimite. The consensus among jurists that this Khums share is exclusive to the poor/needy, the orphans, and the wayfarer among the Hashimites, hence the name, "The share of Sadat- the descendants of the Prophet", as opposed to the Share of the State which is known as "The Share of the Imam". That said, at certain occasions a Hashimites might be given of the Share of the Imam.

To sum up, the classification of the recipient of Khums is the subject the Qur'anic verse, "And know that whatever thing you gain, a fifth of it is wayfarer, if you believe in Allah and in that which We revealed to Our servant, on the day of distinction, the day on which the two parties met; and Allah has power over all things".(8/14).

135. In discussing Zakat, we have already mentioned categories of people entitled for payment of Khums so as other conditions that should be fulfilled. Khums is not different in this regard. However, the following requirements have to be satisfied in order that those entitled for the share of Hashimites be granted Khums money.

i. Belief in the true tenets of the faith. Justice and full adherence to the dictated of sharia law are not among the conditions, although those who truned their back to prayers, flagrant in committing sins, and drink alcohol should, as a matter of obligatory precaution, be denied any share of Khums money.

ii. The orphan is he who lost his father and still below the age of adulthood. Once he reached adulthood he can no longer be considered orphan, according to shari'a law, even though he is still not mature enough and not capable of leading an independent life.

Being orphan per se is not a vehicle to receiving Khums money; an orphan must be poor, i.e. not capable of subsisting himself for a year, to qualify for receiving any money of the share of Hashimites.

136. A Hashimite woman married to non-Hashimite man does not automatically qualify for Khums money by virtue of being Hashimite, especially if her husband can support her all year round, even though by way of borrowing. Should the husband not be in a position to do that, or she needed the money to, say, pay back her debt, which the husband is not normally responsible for, should be granted money of the share of Hashimites in Khums. Once she receives the money she will have right of disposal over it.

137. Unlike the ruling in Zakat, a Hashimite is entitled to receive Khums money, regardless of the payer being one or not.

138. It is permissible to pay Khums money to one category among those entitled to receive it to sustain them for one year. It is also permissible to distribute the sum among the three categories in the way the payer likes.

2. Rules of Payment to Eligible Recipients

The payer of Khums is not free to pay his dues directly to those Hashimites who are entitled to receive a share, nor is he free to dispose of the share of the Imam prior to having contacted the Marji', who is the mujtahid just jurist, or his agent, as a matter obligatory precaution. Furthermore, such a jurist must also be very well aware of his public as well as private spending, which should be concordant with the dictated of the shari'a.

139. It is not obligatory to pay Khums to the entitled recipients where the Khums is generated, although it is advisable to do so, as a matter of voluntary ihtiyat (awla). However, should transferring the money to some other place entail any apathy to paying one's dues, such as delaying payment for a long time, it is not permissible to do so. Likewise, if the Khums has been generated in a place, other that that of the Khums payer, he should do his best in choosing an early date of settling his Khums liability.

140. Should the payer of Khums owe any money from the person entitled for Khums, who he wishes to pay Khums to, he is entitled to offset such debt against any Khums payments, if he has agreed before hand on such an arrangement with the Marji'.

141. Should erroneous payment of Khums be made, after the year has drawn to a close, e.g. for miscalculation, the payer is entitled to claim back from the poor person what he paid them in Khums. But, if the payment is made earlier in the (tax) year, in the belief that the payer was not in need then for money he paid for his annual expenditure, only to find out that he needed the money, it is not permissible for him to claim back what he gave, even though the actual Khums money was still available, let alone what of it was already dispended with.

142. While we were discussing "Khums Assessment", we have already mentioned that the Khums payer, who is not a position to know how much Khums he should pay, has to reach a settlement with the Marji'. The issue here is that: is the payer obliged to pay the sum of Khums to the same Marji' he made the settlement with or his agent, or can he pay it to any other mujtahid?

The answer is that the follower of a mujtahid should abide by the fatwa of the mujtahid, i.e. should he rule that payment must be made to the Marji', he must comply, on the assumption that he had reached such a settlement with him or his agent. If, perchance, the agent was that of the Marji' himself too, there is no objection to making payment to him, unless he has reached such a settlement with a Hashimite agent has already received the money from him (mukallaf) and took it for himself, the lending it to him, in which case, he is not allowed to pay to others, even if that other (agent) is an agent of his Marji' too.

But, if the mukallaf was following a Marji' who does not make it obligatory to pay Khums to him or his agent alone, the payer can settle his Khums liability by paying it to whomsoever of the mujtahids he wishes. It is within a right too to apportion the Khums by giving it to more than one mujtahid. The exception of the Hashimite cleric discussed in the previous para. applies here too.

143. For a host of valid reasons, the mukallaf may not be in a position to settle him Khums liability in full and in single payment. The Marji' may consider granting the mukallaf a delay in paying his dues as he sees fit.

This could be done either by receiving the amount of Khums from the mukallaf, then return same to him by way a debt, or grant an outright extension to settle it on some future date in full or in part, or any other method of payment, not losing sight of both the interests of the mukallaf and the recipient of Khums.

Should such an arrangement be agreed by the Marji', the Khums be treated as though it has been paid. If the market value of the provisions increases, during the grace period, no extra Khums should be levied.

144. Many years may elapse before the mukallaf realizes that he should have been paying Khums. Such must take necessary action to rectify his position vis--vis Khums tax.

The following scenarios may come into play:

i. His income could have been sufficient for him and members of his family, i.e. without being able to save any money. Provided that the income was not misuse, i.e. for illicit spending or got mixed with ill-gotten, he is required to take into account only those items of provisions which were surplus, albeit an ounce of tea or sugar; he must estimate an amount for each year he missed out on payment of tax and get it settled with the Marji'.

ii. The mukallaf's income could have been fluctuating; he may have spent irresponsibly in some avenues; he may as well have spent some of his income in illicit ways. He may have traded in his property, making a profit or loss. He may have disposed of his income in this way or the other.

Computing Khums on such a diverse situation should follow the rules, already set out, that deal with each and every according to its merits, whether he knew what he earned/spent in detail, vaguely, or not at all. Since, people in such cased do not pay attention to choosing a date in the year to mark the beginning of their tax year, they can rely on the date they generated the income and how they spent it, as the date of the tax year. After allowing for one's yearly provisions, any excess/shortfall should be counted for the payment of otherwise of Khums.

Should the mukallaf not be in a position to any detail of his income and outgoing, he has no alternative but to reach a settlement with the Marji'.

145. It is permissible to take away the amount of Khums due from the property of the person who withholds payment, provided that it is done with the knowledge and approval of the Marji'.

3. Rules of Loss of Khums Money

146. The Khums taxable property could be lost through fire or the sort without the fault of the proprietor. Should this happen before the amount of Khums paid, no liability shall befall the proprietor.

The taxpayer could be responsible for not setting aside, in good time, the amount of Khums before the loss was sustained; he may as well have not a good reason for delaying payment; he may be held responsible for not giving due care to preserving the property before it was accidentally lost; he may be at fault in causing the property to be lost by way of sabotage. In all these cases, the proprietor should stand to indemnify the amount of Khums in the property. The Marji' has, in this case, the right to demand the payment of Khums either in kind or the value thereof.

Even if the property is lost by others, but through the negligence of the proprietor, he should stand to indemnify the amount of Khums. The Marji' should have recourse to the proprietor in the same way just explained, according to the principles of compensation, because the settlement of this issue is confined to the responsibility of the proprietor in safeguarding the amount of Khums due on his property before the Marji', who is the guardian of Khums.

Should there be no case for negligence on the part of the proprietor, and the property was lost through others' wanton aggression, the latter should be made to pay the amount of Khums; the Marji' should have the right to demand payment from the culprit directly.

147. The mukallaf may be following the fatwa of a certain jurist, who is of the opinion that no Khums should be levied on items acquired by way of gift; on the death of this jurist, the follower switched his allegiance to another jurist, who thinks differently. The mukallaf should pay Khums on those gifts, even though they may have been disposed of or lost.

148. The amount of Khums may be set aside the mukallaf prior to handing it over to the recipient. Should it be lost, the mukallaf must compensate same; this is because mere setting aside of the Khums does not actually take it out of his ownership and place it under that of the recipient. Thus, in the event of loss, the mukallaf is responsible for such a loss.

149. The mukallaf may lawfully dispose of the asset which is still liable for Khums. Should his action be unintentional or through ignorance, he must not be deemed sinful. If it was deliberate, he be deemed sinner. However, in both the cased, the disposal of the asset be deemed as though it was lost. Here, there is a number of rules that should be discussed:

i. The proprietor must stand to indemnify the Khums due on the property that was disposed of; the Marji' can demand payment from him. He should pay in kind or the value therefore.

ii. The transaction of disposing of the asset is valid. Thus, the new owner, should he be believer, can have right of disposal over the acquired item, without being held responsible for the unpaid amount of Khums due on it. Furthermore, the proprietor does mot have an automatic right to canceling the transaction, even if it was struck inadvertently, unless the terms of sale provide for such an option.

iii. The proprietor may have disposed of certain items, such as grain and eggs, whose Khums is not yet paid, by way of using the grains as seeds and the eggs to produce chicks and suchlike. The proprietor should guarantee the payment of the original items not what they have turned out. That is, any return that may result of the Khums of the new items should be deemed as the property of the owner and not the recipient of Khums.

iv. The mukallaf may decide to trade in the item, be it money or asset, after it has become liable for Khums, and before its payment, even for a good reason, making a profit in the process. If the transaction was struck by way of the owner's selling the item, the would-be Khums recipient must be paid his share, i.e.20%, of the profit. But, if the mukallaf bought the item with his won money and sold it, making some profit in the process, the would-be recipient is not entitled to a share in the profit. That is, the mukallaf has already paid the recipient his share before the end of the year the transaction was struck. Otherwise, the recipient would stand to gain a share of the profit.

v. The believer has the right of disposal over what the person withholding the payment of Khums make available of his property for him. Thus, it is permissible for him to eat, drink, or prayer in his house, wearing his clothes and so on; this is because the sin resulting from having the right of use (disposal) over the property which is still liable for Khums falls squarely on the shoulders of the person withholding payment of Khums; thus, no offence is done by the believer who may have had a free hand in the property, be it knowingly or unknowingly.

150. Should the value of the lost/disposed of property be different, i.e. at the time of loss and that of payment, the deciding value should be that of the date of payment.